Yong Vui Kong v Public Prosecutor

• Judge: Sundaresh Menon CJ
• Judgment Date: 04 March 2015
• Neutral Citation: [2015] SGCA 11
• Subject Matter: Misuse of Drugs Act,Constitutional Law,Equal protection of the law,Fundamental liberties,Criminal Law,Right to life and personal liberty
• Year: 2015
• Docket Number: Criminal Appeal No 11 of 2013
• Citation: [2015] SGCA 11
• Hearing Date: 22 August 2014
• Defendant Counsel: Tai Wei Shyong, Francis Ng, Sarala Subramaniam and Scott Tan (Attorney-General's Chambers)
• Published date: 06 March 2015
• Court: Court of Three Judges (Singapore)
• Plaintiff Counsel: M Ravi (L F Violet Netto)

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

This is an appeal against the decision of the High Court judge (“the Judge”) in Criminal Motion 56 of 2013 to re-sentence the Appellant to life imprisonment and 15 strokes of the cane for drug trafficking. This was the sentence that the Appellant had contended for before the Judge. The Appellant now argues that the sentence of caning violates Arts 9(1) and 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). This was the central issue raised in this appeal.

Background facts

The Appellant was charged with trafficking in 47.27g of diamorphine, which is an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the MDA”). The offence was committed on 12 June 2007. He was convicted after a trial and sentenced to death by the Judge on 14 November 2008.

The Appellant’s sentence of death was held in abeyance as he brought a series of legal challenges against: the constitutionality of the mandatory death penalty imposed by s 33 of the MDA read with the Second Schedule thereto (see Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489 (“Yong Vui Kong (MDP)”)); the integrity of the clemency process set out in Art 22P of the Constitution (see Yong Vui Kong v Attorney-General [2011] 2 SLR 1189); and the Public Prosecutor’s decision to prosecute him for a capital offence under s 5(1)(a) of the MDA while applying for (and obtaining) a discontinuance not amounting to an acquittal of various charges under the MDA against the Appellant’s alleged principal and supplier (see Yong Vui Kong v Public Prosecutor [2012] 2 SLR 872).

In the meantime, while these various proceedings were working their way through the courts, the Government had begun a review of the mandatory death penalty and as a result, all executions were suspended from July 2011 pending completion of the review. The review culminated in the passage of various pieces of legislation including the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) (“the MDA Amendment Act”) on 14 November 2012, which came into effect on 1 January 2013. Under s 33B of the MDA as amended (“the amended MDA”), a person convicted of a drug trafficking offence punishable with death could instead be sentenced to: imprisonment for life and caning of not less than 15 strokes if he only played the role of courier and the Public Prosecutor certifies that he had substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities (“the substantive assistance limb”) (s 33B(1)(a) read with s 33B(2)); or imprisonment for life if he only played the role of courier and was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in relation to the offence (s 33B(1)(b) read with s 33B(3)).

By virtue of the transitional provisions set out in s 27(6) of the MDA Amendment Act, the Appellant was entitled to apply to the High Court for re-sentencing under s 33B of the amended MDA. He did so on 26 September 2013 via Criminal Motion 56 of 2013, relying on the substantive assistance limb in s 33B(2). On 12 November 2013, the Public Prosecutor issued a certificate of substantive assistance in respect of the Appellant. On 14 November 2013, the Judge held that the Appellant had satisfied the requirements of the amended MDA and imposed on him the mandatory minimum sentence of life imprisonment and 15 strokes of the cane.

Grounds of appeal

The Appellant now appeals against his sentence of caning on several grounds. A number of those grounds were subsequently withdrawn, and those that remain are as follows: Caning constitutes a form of torture that is prohibited by a peremptory norm of international law (or jus cogens) as well the common law. Thus, the statutory authorisation of mandatory caning is in breach of Art 9(1) of the Constitution. Even if caning as a form of corporal punishment in general does not necessarily constitute torture, the punishment as it is implemented in Singapore by the Commissioner of Prisons or by his officers is so severe and painful that it amounts to torture. The imposition of mandatory caning on a prisoner who is already sentenced to life imprisonment is irrational, illogical and does not serve any lawful purpose because there is no evidence of its value as a deterrent. It therefore lacks the essential features of law within the meaning of Art 9(1) and is unconstitutional. Caning in Singapore is administered in a discriminatory manner because it is not applied to men above the age of 50 or to women. Thus, the statutory authorisation of caning violates Art 12(1) of the Constitution.

Correspondence and submissions after the hearing

At the hearing of the appeal, we granted the Appellant leave to tender further written submissions to respond to certain additional authorities tendered by the Respondent regarding the definition of torture with leave to the Respondent to reply. The Appellant subsequently wrote to the Respondent and the Singapore Prison Service (“Prisons”) asking for a copy of any rules and directions made under s 329(1) and (2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). Those subsections state as follows:

Mode of executing sentence of caning

329.—(1) The Minister may make rules to prescribe the mode of carrying out the sentence of caning.

(2) Caning shall be inflicted on such part of the person as the Minister from time to time generally directs.

The Respondent initially rejected the Appellant’s request (and the Attorney-General evidently advised Prisons to do the same) on the basis that the rules and directions were irrelevant to the further submissions that the Appellant had been given leave to tender. The Appellant however submitted that the rules and directions were relevant to the issue of whether caning pursuant to a judicial sentence is implemented in a manner that constitutes torture, and asked that the Respondent be required to produce the rules and directions. In reply, the Respondent stated that no rules had been made to date under s 329(1) and (2) of the CPC, although Prisons has internal Standing Orders and Standard Operating Procedures (collectively, “Orders”) which supplement the statutory provisions governing the execution of caning. The Respondent contended that these Orders should not be produced as they pertain to operational matters with security implications.

We invited the Respondent to consider whether he would furnish a redacted version of the Orders that excluded any portions that he thought posed a security risk. We indicated that we would otherwise proceed to decide the appeal on the basis that there were no such Orders. After consulting the Ministry of Home Affairs (“the MHA”), the Respondent replied that both he and the MHA were of the view that it would not be in the public interest to disclose the Orders. We therefore invited the Appellant to make submissions on the effect of there being no such Orders and also granted the Respondent leave to reply. Both parties have since tendered further submissions addressing us on this issue, which we will consider when we come to the issue of whether caning constitutes torture.

Issues arising in this appeal

The issues arising in this appeal are as follows: Does the imposition of a sentence of caning on the Appellant violate Art 9(1) of the Constitution on the basis that it amounts to torture (“the Torture Issue”)? Does the imposition of a sentence of caning on the Appellant violate Art 9(1) of the Constitution on the basis that it is irrational, illogical and does not serve any lawful purpose (“the Irrationality Issue”)? Does the statutory authorisation of caning violate Art 12(1) of the Constitution on the ground that it impermissibly discriminates against men aged 50 and below (“the Equal Protection Issue”)?

The Torture Issue

The Appellant contends that caning constitutes torture. Although no express prohibition of torture exists in the Constitution or in our domestic statutes, he submits that this prohibition is imported into domestic law from international law. At the hearing of the appeal, he further submitted that such a prohibition exists at common law or as an unenumerated right in the Constitution. He contended on this basis that caning violates Art 9(1) of the Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”.

In the light of the Appellant’s arguments, the following sub-issues arise for our consideration: Does caning constitute a deprivation of “life or personal liberty” within the meaning of Art 9(1)? Does the law of Singapore prohibit torture? Does caning constitute torture?

Does caning constitute a deprivation of “life or personal liberty”?

In order for Art 9(1) to be engaged at all, caning must involve a deprivation of “life or personal liberty”. The Appellant submits that caning does involve a deprivation of personal liberty because it is administered on a prisoner while he is physically restrained. On the other hand, the Respondent contends that the words “deprivation of … personal liberty” in Art 9(1) refer only to unlawful incarceration or detention. The physical restraint of a prisoner while he is being caned does not count as a deprivation of personal liberty because that is not the primary object of caning but is an incidental aspect of its administration.

Before we consider the construction of these words “life or personal liberty”, it is helpful to note two key features of Art 9(1) which are apparent on a plain reading. First, it prohibits the State from unlawfully depriving an individual of his life or personal liberty, but does not impose any duty on the State to take affirmative measures to facilitate or promote a person’s...