Yong Vui Kong

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    [2010] 3 SLR SINGAPORE LAW REPORTS 489

    Yong Vui Kongv

    Public Prosecutor and another matter

    [2010] SGCA 20

    Court of Appeal Criminal Appeal No 13 of 2008; Criminal Motion No 7 of 2010Chan Sek Keong CJ, Andrew Phang Boon Leong JA and V K Rajah JA15 March; 14 May 2010

    Constitutional Law Constitution Interpretation Whether international

    human rights norms relevant to interpretation of Constitution of the Republic ofSingapore (1985 Rev Ed, 1999 Reprint) Whether Constitution should beinterpreted consistently as far as possible with Singapores international legalobligations Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

    Constitutional Law Equal protection of the law Whether mandatory deathpenalty under Misuse of Drugs Act (Cap 185, 2001 Rev Ed) violated right to equalprotection of the law accorded under Art 12 Constitution of the Republic of Singapore(1985 Rev Ed, 1999 Reprint) Whether differentia under Misuse of Drugs Act whichmade death penalty mandatory for trafficking in more than 15g of diamorphinecaused arbitrary distinctions to be drawn between offenders who trafficked indifferent amounts of diamorphine Whether differentia was intelligible differentia Whether differentia bore rational relation to social object of Misuse of Drugs Act Article 12(1) Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint) Misuse of Drugs Act (Cap 185, 2001 Rev Ed)

    Constitutional Law Fundamental liberties Right to life and personal liberty Whether mandatory death penalty under Misuse of Drugs Act (Cap 185, 2001 RevEd) deprived life in accordance with law within meaning of Art 9(1) Constitution of

    the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Whether Art 9(1)Constitution expressly or impliedly prohibited inhuman punishment Whethercourts might interpret Art 9(1) to contain implied prohibition against inhuman

    punishment where such prohibition had been considered for inclusion intoConstitution but rejected by Government Article 9(1) Constitution of the Republicof Singapore (1985 Rev Ed, 1999 Reprint)

    Constitutional Law Fundamental liberties Right to life and personal liberty Whether mandatory death penalty under Misuse of Drugs Act (Cap 185, 2001 RevEd) deprived life in accordance with law within meaning of Art 9(1) Constitution of

    the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Whether expression lawin Art 9(1) Constitution included customary international law Whethercustomary international law needed to be incorporated into domestic law to beregarded as law within meaning of Art 9(1) Whether customary internationallaw which was inconsistent with rules enacted in statutes might be incorporated intodomestic law Article 9(1) Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint)

    Constitutional Law Fundamental liberties Right to life and personal liberty Whether mandatory death penalty under Misuse of Drugs Act (Cap 185, 2001 Rev

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    490 SINGAPORE LAW REPORTS [2010] 3 SLR

    Ed) deprived life in accordance with law within meaning of Art 9(1) Constitution ofthe Republic of Singapore (1985 Rev Ed, 1999 Reprint) Whether expression lawin Art 9(1) Constitution included customary international law Whether expression

    law in Art 9(1) might be interpreted to include customary international law ruleprohibiting inhuman punishment Article 9(1) Constitution of the Republic ofSingapore (1985 Rev Ed, 1999 Reprint)

    Constitutional Law Fundamental liberties Right to life and personal liberty Whether mandatory death penalty under Misuse of Drugs Act (Cap 185, 2001 RevEd) deprived life in accordance with law within meaning of Art 9(1) Constitution ofthe Republic of Singapore (1985 Rev Ed, 1999 Reprint) Whether expression lawin Art 9(1) Constitution justified any legislation which was in force whatever itsnature Whether expression law in Art 9(1) included law prescribing inhuman

    punishment Article 9(1) Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint)

    Constitutional Law Fundamental liberties Right to life and personal liberty Whether mandatory death penalty under Misuse of Drugs Act (Cap 185, 2001 RevEd) deprived life in accordance with law within meaning of Art 9(1) Constitution ofthe Republic of Singapore (1985 Rev Ed, 1999 Reprint) Whether expression lawin Art 9(1) Constitution justified any legislation which was in force whatever itsnature Whether test for constitutional validity of laws under Art 9(1) was thatlegislation had to be fair, just and reasonable Article 9(1) Constitution of theRepublic of Singapore (1985 Rev Ed, 1999 Reprint)

    International Law Human rights Whether mandatory death penalty wasbreach of customary international law Whether there existed extensive andvirtually uniform state practice and opinio juris sive necessitatis supportingcustomary international law rule prohibiting mandatory death penalty as inhuman

    punishment

    Facts

    The appellant was convicted of trafficking in 47.27g of diamorphine, acontrolled drug, and sentenced to suffer the mandatory death penalty (MDP).He appealed against his sentence on the ground that the MDP imposed underthe Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (the MDA) wasunconstitutional because it violated Art 9(1) of the Constitution of the Republicof Singapore (1985 Rev Ed, 1999 Reprint) (the Singapore Constitution) (theArt 9(1) challenge), which set out the right to life, and Art 12(1), which set outthe right to equal protection of the law (the Art 12(1) challenge). There weretwo limbs to the Art 9(1) challenge: first, that the expression law in Art 9(1),

    which provided that [n]o person shall be deprived of his life or personal libertysave in accordance with law, did not include laws which imposed an inhumanpunishment and, since the MDP was an inhuman punishment, the MDPprovisions in the MDA were not law within the meaning of Art 9(1); andsecond, that the expression law in Art 9(1) included customary internationallaw (CIL), and, since CIL prohibited the MDP as an inhuman punishment, theMDP provisions in the MDA violated Art 9(1) and were not law for that reasonas well. The appellants basis for contending that the MDP was an inhumanpunishment was that it precluded the courts from considering the circumstancesof the case, and thus the moral blameworthiness of the offender, in sentencing.

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    [2010] 3 SLR Yong Vui Kong v PP 491

    The MDP therefore punished offenders as a faceless, undifferentiated mass andthus dehumanised them. In making this argument, the appellant relied on aseries of decisions of the Privy Council on appeals from various Caribbean states

    and also the decision of the Supreme Court of India inMithu v State of PunjabAIR 1983 SC 473 (Mithu).

    As for the Art 12(1) challenge, the appellant contended that the MDP provisionsin the MDA, which made the amount of diamorphine trafficked the soledeterminant of when the MDP was to be imposed (more than 15g ofdiamorphine (the 15g differentia)), caused arbitrary distinctions to be drawnbetween offenders who trafficked in different amounts of controlled drugs andthus violated Art 12(1).

    The appellant also filed Criminal Motion No 7 of 2010 (CM 7/2010) seekingleave to adduce an affidavit by Prof Jeffrey Fagan in support of the argument thatthe MDP was of limited deterrent effect.

    The Prosecution responded to the Art 9(1) challenge by arguing that theappellants reliance on numerous Privy Council cases to advance that challengewas misplaced because the Privy Council did not dictate human rights standardsfor the rest of humanity. The Prosecution also contended that the existence of 31States which continued to impose the MDP for drug-related and other seriousoffences demonstrated a lack of widespread state practice and opinio juris sive

    necessitatis (opinio juris) necessary to establish the prohibition of the MDP as arule of CIL. With regard to the Art 12(1) challenge, the Prosecution contendedthat the 15g differentia satisfied the test of constitutionality under Art 12(1) asset out by the Court of Appeal in Nguyen Tuong Van v PP[2005] 1 SLR(R) 103(Nguyen) because it met the twin criteria of (a) being an intelligible differentia;and (b) having a rational relation to the MDAs legislative object.

    Held, dismissing the appeal:

    (1) Article 2(1) of the Singapore Constitution defined law to include, inter

    alia, written law. The MDA, being legislation in force in Singapore, wastherefore, prima facie, law as defined and law within the meaning ofArt 9(1): at [11] and [12].

    (2) Article 9(1), however, did not justify all legislation whatever its nature.Legislation which violated fundamental rules of natural justice, or which was ineffect a legislative judgment directed at securing the conviction of particularknown individuals, or which was of so absurd or arbitrary a nature that it couldnot possibly have been contemplated by Singapores constitutional framers asbeing law when they crafted the constitutional provisions protecting

    fundamental liberties (ie, the provisions in Pt IV of the Singapore Constitution)could not be justified by Art 9(1): at [14], [16] and [75].

    (3) Nonetheless, Art 9(1) contained no express prohibition against inhumanpunishment and could not be interpreted to contain such an impliedprohibition. Domestic law, including the Singapore Constitution, should, as faras possible, be interpreted consistently with Singapores international legalobligations. There were, however, inherent limits in the interpretative exercise.An express constitutional provision prohibiting, inter alia, inhumanpunishment was proposed to the Government in 1966 by the constitutional