Case Study: Misuse of Drugs Act

Seminar 5

Spore govts reasons for criminalization

Harm
Who? Harm to individual Families Society who has to support drug addicts Country (economic growth)

Singapores drug regulatory regime

Criminal law
General concepts: Penal Code Specific concepts: MDA, Intoxicating Substances Act

Executive action (not subject to judicial oversight)

Criminal Law (Temporary Provisions) Act: in the interests of public safety, peace and good order

Administrative action
Treatment and rehabilitation

Treatment and rehabilitation

Director
Art. 34 MDA reasonably suspects --- medical examination appears to be necessary Supervisory order or Rehabilitation order

Treatment and rehabilitation

Approved institutions (Art. 35 MDA)

Minister

Review committee (Art. 37 MDA)

Appointed by Minister 4 individuals 6 months (Art. 37 (4) MDA)

Director
2 years (Art. 37 (4A) MDA)

Three year limit

Treatment and rehabilitation

What if you are wrongfully detained? Art. 39 MDA: magistrate complaint

Inquire himself Delegate to police Private hearing Evidence cannot be used in criminal or civil proceedings

Unique features of Spores drug laws

Mandatory death sentence The use of presumptions Strict judicial interpretation

Mandatory death penalty

Ong Ah Chuan
Art. 9 Constitution no one shall be deprived of his life or personal liberty save in accordance with law Art. 12 (1) Constitution all persons are equal before the law and entitled to the equal protection of the law

Mandatory death penalty

Ong Ah Chuan Argument

Prevents proper distinction between accused Arbitrary

What is the differentiation based on?

drug quantity Is this justified? Social policy --- job of the legislature

Mandatory death penalty

Ong Ah Chuan Not concerned with equal punitive treatment for equal moral blameworthinessconcerned with equal punitive treatment for similar legal guilt para. 39
Do you agree Reflect on aims of criminal law and criminal punishment

Mandatory death penalty

Death by hanging
Cruel and inhuman punishment?

International law

Nguyen Tuong Van Vietnamese Australian 24 years old Universal Declaration of Human Rights Art. 5
No one shall be subject to torture or cruel, inhuman or degrading punishment Argue that this is custom

Court of Appeal
No - many countries have mandatory death penalty Even so, domestic law can over-rule international law

Presumptions: MDA

Burden of proof: presumption of innocence (s. 103 Evidence Act)

Whoever wishes any court to give judgment as to any legal right or liability, dependant on the existence of facts which he asserts, must prove that those facts exist General rule: Burden of proof on prosecution

Presumptions: MDA

17.Any person who is proved to have had in his possession more than (a) 100 grammes of opium; (b) 3 grammes of morphine; (c) 2 grammes of diamorphine; (d) 15 grammes of cannabis; (e) 30 grammes of cannabis mixture; (f) 10 grammes of cannabis resin; (g) 3 grammes of cocaine; (h) 25 grammes of methamphetamine; (ha) 113 grammes of ketamine; or (i) 10 grammes of any or any combination of the following: (i) N, -dimethyl-3,4-(methylenedioxy)phenethylamine; (ii) -methyl-3,4-(methylenedioxy)phenethylamine; or (iii) N-ethyl-methyl-3,4-(methylenedioxy)phenethylamine, whether or not contained in any substance, extract, preparation or mixture, shall be presumed to have had that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose.

Presumptions: MDA

Presumption of possession and knowledge of controlled drugs 18.(1) Any person who is proved to have had in his possession or custody or under his control (a) anything containing a controlled drug; (b) the keys of anything containing a controlled drug; (c) the keys of any place or premises or any part thereof in which a controlled drug is found; or (d) a document of title relating to a controlled drug or any other document intended for the delivery of a controlled drug, shall, until the contrary is proved, be presumed to have had that drug in his possession. (2) Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug. Double Presumption: Low Lin Lin (case to case examination, control, whether others also had access vs airport check-in scenario)

Presumptions

Ong Ah Chuan Fundamental rules of natural justice in the field of criminal law? Presumption is ok here
Purpose peculiarly within the knowledge of the accused per se unlawful Law concerns society interest

How should presumptions be read?

Mohd Halmi (3 people A asks B to pick up packet from C, A and C charged with abetting B to traffic, B charged with trafficking) Trial court
suggests that s 17 cannot ride on s 18 (1) but can ride on s 18 (2)

Court of Appeal
s17 and s18 separate regime s17 (trafficking) s18 (possession) Can only prove trafficking directly through s 2 or s 17 Here falls under s 2 doesnt need to know who he is giving to

Presumptions

Rebutting the presumption of knowledge Tan Kiam Peng (High Court)

Must prove lacked knowledge of drugs nature E.g. name of drug, classification, punishment associated Fact analysis look at matter good dose of common sense

Judicial interpretation

Ordinary meaning of words

Ordinary mans reading?

Purposive interpretation
Parliaments intent - parliamentary reports

Holistic consideration (e.g. punishment) What about the role of the courts?
Guardian of individual rights and concerns or enforcer of governmental policy?

Strict judicial interpretation: MDA

MDA wording -- not self-evident Traffic

sell, give, administer, transport, send, deliver or distribute Offer

1993 amendment: Art. 5 (2) Broad literal definition

but is it possible to temper with a purposive interpretation?

Judicial interpretation

Muhammad Jeffry (some drugs were given to gf for her own use) Court of Appeal
Trafficking gave drugs physical act without any reference to ownership

Judicial interpretation

Ng Yang Sek chinese sinseh case opium as secret ingredient Knew it was opium Lower court trafficking sentenced to death Court of Appeal - acquitted of trafficking charge Not associated with trade, not intended for drug addiction, didnt reveal ingredients to patients, dont deserve disapprobation reserved for drug dealers 2 years imprisonment, 10 000 fine

Judicial interpretation

Lee Yuan Kwang asked to keep drugs by friend intended to keep then decided to heavy and intended to return Court of Appeal
trafficking - As long as was to transfer possession back Does not matter if custodian or in process of returning the drugs Cloakroom attendant example cited

Judicial interpretation

Jeffrey Ong (Ecstasy case)

Argued MDA dont intend to target first-timers like him Plain meaning vs purposive interpretation Distinguish Ng Yang Sek (Opium doctor) no ambiguity of defendants guilt here Falls also within purposive interpretation Parliament intends would-be traffickers