By Yeoh Jean Ann, An Xian Chen, Shannon Chua, Kevin Lau
Singapore is famous for her zero-tolerance approach against drugs, and infamous for having one of the world’s highest per-capita execution rates.1 Up till recently, the death penalty was mandatory for offences such as murder and drug trafficking over a certain weight. This controversial issue has always received the ire of anti-capital punishment activists. It was thus surprising that on 9 July 2012, Singapore Parliament announced a revision of the mandatory death penalty scheme for murder and drug trafficking offences. These changes were passed on 14 November 2012 and took effect retrospectively at the start of 2013, granting judicial discretion in sentencing for capital drug-related and murder offences.
One notable change is the addition of s. 33B to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), as amended by s. 14 of the Misuse of Drugs (Amendment) Act 2012, No. 30 of 2012. It provides that a person who would usually be subject to the mandatory death penalty can instead be sentenced to life imprisonment. This amendment may be a godsend for drug couriers such as Yong Vui Kong. On 14 Nov 2013, Yong, a high profile convict who was formerly on death row for drug trafficking was instead given life imprisonment and 15 strokes of the cane. He is the first such person to have benefited from this new scheme.2
During the passage of the Misuse of Drugs (Amendment) Bill3, Deputy Prime Minister Teo Chee Hean stated that the the mandatory death penalty is a key aspect of the deterrent message against drug abuse. This paradigm is very much in line with Singapore’s traditionally strict stance on crime which favours aggressive law enforcement and crime prevention.4 On the other hand, Law Minister K. Shanmugam stated in that very same Parliamentary session that “[s]ociety must be protected against criminals. But justice can be tempered with mercy and where appropriate, offenders should be given a second chance.”5 This suggests that an overly strict system of sentencing and punishment, whilst enhancing the law’s deterrent effect, may come at the risk of meting out punishment which may hinder attempts at rehabilitation. The move towards a more discretionary death penalty regime in homicide and drug abuse cases can be construed as motivated by the desire to reconcile the tensions between the two broad objectives of deterrence and proportionality in sentencing6.
This article will focus on the discretionary death penalty in drug abuse cases. It will examine whether the current discretionary regime under the MDA is able to achieve the twin objectives of deterrence and proportionality as well as how well it is able to manoeuvre around their inherent tension to achieve a satisfactory state of coexistence between the two.
Examining the two conditions for judicial discretion
In an effort to achieve a more lenient and fairer sentencing, the legislation has created a certain degree of judicial discretion in sentencing for offences that previously carried a mandatory death penalty. Notably, s. 33B which was recently was added to the MDA provides that a person subject to the mandatory death penalty under s. 5(1) and/or s. 7 MDA, may be sentenced to imprisonment for life instead if the following two criteria are satisfied. First, it must be proven that the person convicted was only a drug courier – this is a reference to the scope of the accused’s involvement in the act of trafficking or importing. Secondly, the accused must either be certified by the Public Prosecutor that he substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities (s. 33B(2)(b) MDA), or was suffering from abnormality of mind that substantially impaired his mental responsibility for the drug offence (s. 33B(3)(b) MDA).
The first condition of the judicial discretion of life imprisonment under s. 33B, states that the accused must be a courier. This is a pragmatic consideration because drug mules are rarely the initiators, financiers, or profiteers behind drug trafficking operations. More often than not, they have lower levels of culpability than suppliers. However, because s. 33B applies exclusively to drug couriers, this may unduly restrict the judges’ ability to extend the judicial discretion to those that are involved in various other peripheral roles with similarly low levels of culpability. Such a restriction would reduce the purported proportionality of the judicial discretion.
According to DPM Teo Chee Hean, the role of a drug courier is to be confined strictly according to the words of the statute – “transporting, sending or delivering”. 7 Justice Tay sought to clarify this issue in Public Prosecutor v Abdul Haleem bin Abdul Karim (“Abdul”).8 He recognized that s. 33B(2)(a) only applied to the narrow role of a courier, but warned against “[construing it] pedantically such that an incidental act of storage or safe-keeping (which is not one of the express roles listed under s.33B(2)(a))… would mean that he is also playing the role of storing or safekeeping drugs within the drug syndicate”.9 Therefore, he held that even though the accused persons had held onto and stored the drugs, which possibly meant that their role was not merely restricted to that of a courier, they nevertheless fell under the scope of s. 33B(2)(a). This is because the act of storage was only incidental to the act of transportation which was done for the purpose of delivery.10 The authors consider this is heartening news, because despite the ostensibly technical and strict nature of the “courier” requirement, the courts can take a flexible approach in consideration of the totality of the facts to grant leniency to accused persons.
The second condition of the judicial discretion under s. 33B is that the accused person must be certified by the Public Prosecutor to have substantially assisted the CNB in disrupting drug trafficking activities. The authors also have concerns about this requirement, because the determination of the second condition of the judicial discretion would then fall under the purview of the Public Prosecutor, as opposed to the judge. Moreover, during the Misuse of Drug (Amendment) Bill debate, multiple Members of Parliament expressed concern as to whether “couriers who are low in the hierarchy within drug syndicates will be able to provide useful information to substantively assist the CNB” even if they are willing to help, and consequently still face the death penalty.11 In response to such queries, DPM Teo Chee Hean acknowledged that not all drug couriers would have the required information to fufill the requirement of certifcation but he replied that “[t]he policy intent of this substantive cooperation amendment to our mandatory death penalty regime is to maintain a tight regime – while giving ourselves an additional avenue to help us in our fight against drugs, and not to undermine it”.12
DPM Teo Chee Hean defended this policy by stating that offering couriers a chance to escape the gallows by substantially assisting the CNB goes towards s. 33B’s wider goal of disrupting drug operations. If couriers who have been arrested are persuaded into divulging critical information, drug syndicates may have to stop relying on experienced couriers who have “gleaned more information about the networks”, and have to use new couriers, which “will make their supply chain less reliable”.13 DPM Teo also stated the need to continue to adjust our strategies as syndicates adapt to the changes in the law, and recognized even if s. 33B did not yield any helpful, substantial information, “we would at the very least have increased the risks and complications for the syndicates”.14
|“But justice can be tempered with mercy and where appropriate, offenders should be given a second chance.”|
The authors interpret this legislative policy to mean that it is the information that a drug courier possesses rather than his culpability that exonerates him. This is, in our view, a policy that can lead to unfair judicial outcomes. A drug courier who willingly volunteers to smuggle drugs into Singapore would be spared the death penalty if he has information which can substantially assist the CNB. Conversely, a drug courier who was forced to smuggle drugs, and thus of lesser culpability, would not be spared from the gallows if he possesses no information that lends substantive assistance. Therefore, we are of the view that the requirement of substantial assistance goes little way towards proportionality and nuance. In fact, it is expressly skewed in favour of deterrence, arguably at the expense of fairer sentencing.
Whether a balance has been struck
The supposed tension between deterence and pro could in fact be a false dichotomy. The view that effective law enforcement and fairer sentencing share an inverse relationship has been criticized by academics as based on “common sense assumptions” which are not substantiated by clear evidence15. The authors support this view and submit that the discretionary death penalty under s33B is actually able to achieve progress in both areas simultaneously. As has been observed, the application of judicial discretion to drug couriers is an acknowledgement of the generally lower culpability of drug couriers. Additionally, by extending a line of mercy towards drug couriers in exchange for their valuable assistance in the drug enforcement endeavours, Parliament is able to pursue a fairer and more lenient system of sentencing while enhancing the enforcement effectiveness of the CNB. Granted, this approach does draw rather ambiguous moral distinctions, but it can be argued that providing mercy in some cases is still better than no mercy at all. The authors are of the opinion that the discretionary death penalty under s. 33B is a more progressive step in striking the balance between deterrence and fairer sentencing, and with time it may result in more just outcomes in deciding capital cases.
Yeoh Jean Ann, Shannon Chua, both 20, Kevin Lau and An Xian Chen, both 22, are second-year students at the National University of Singapore (Law), and one of the Investigation Teams in the Innocence Project.
1 BBC News, “Singapore ‘tops execution league’, online: (2004) < http://news.bbc.co.uk/2/hi/asia-pacific/3398043.stm>
3 Parliamentary Debates Singapore: Official Report, vol 89 (14 November 2012). There are no column numbers in the Hansard report.
4 Michael Hor, “Singapore’s Innovations to Due Process” (2000). Presented at the International Society for the Reform of Criminal Law’s Conference on Human Rights and the Administration of Criminal Justice, Dec 2000, Johannesburg.
6 Parliamentary Debates Singapore: Official Report, vol 89 (12 November 2012). There are no column numbers in the Hansard report.
7 Parliamentary Debates Singapore: Official Report, vol 89 (14 November 2012).
8  SGHC 110.
9 Abdul at .
10 Abdul at .
11 Parliamentary Debates Singapore: Official Report, vol 89 (14 November 2012).
12 Parliamentary Debates Singapore: Official Report, vol 89 (14 November 2012).
13 Parliamentary Debates Singapore: Official Report, vol 89 (14 November 2012).
15 Michael Hor, “Singapore’s Innovations to Due Process” (2000). Presented at the International Society for the Reform of Criminal Law’s Conference on Human Rights and the Administration of Criminal Justice, Dec 2000, Johannesburg.