FEATURE


In November 2012, the Misuse of Drugs (Amendment) Act 2012 and Penal Code (Amendment) Act 2012 heralded numerous changes to the sentencing process and to the scope of the mandatory death penalty for the offences of murder and the trafficking and importation of certain prescribed amounts of controlled drugs. Almost a year into the introduction of those changes, there remains some lack of clarity over the precise ambit of the amendments and the procedural process for sentencing under the new regime. This article examines the legal and practical implications of the said changes, and posits how the relevant legislative amendments to the Misuse of Drugs Act and Penal Code ought to be interpreted and construed.

Changes to the Mandatory Death Penalty Regime – An Overview of the Changes and Some Preliminary Reflections


Introduction

 
On 9 July 2012, the Deputy Prime Minister and Minister for Home Affairs Mr Teo Chee Hean and the Minister for Law Mr K Shanmugam respectively announced changes to the application of the mandatory death penalty to certain drug-related and homicide offences. This culminated in the passage of the Misuse of Drugs (Amendment) Act 2012 and Penal Code (Amendment) Act 2012 on 14 November 2012, both of which came into effect on 1 January 2013. These changes were complemented by changes made to the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”).
 
The merits and demerits of these changes have been the subject of considerable debate and commentary, whether in Parliament,1 in academic scholarship2 or in the form of social commentaries.3 Despite that, there appears to remain some lack of clarity over the preciseambit of the provisions and the procedural process for sentencing under the new regime. With a view to benefiting practitioners in navigating these provisions, this article provides an overview of what the new regime entails and the implications that the regime might have on previously concluded, ongoing, and fresh cases.
 
Overview of the Revised Death Penalty Regime
 
Murder

 
Prior to the amendments coming into force, the Courts had no discretion in sentencing if it found an individual guilty of murder, since the mandatory sentence that had to be imposed upon conviction was the death penalty. Section 302 of the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”), prior to the amendments, read as follows:
 
      Punishment for murder
      302.  Whoever commits murder shall be punished with death.
 
With effect from 1 January 2013, however, the mandatory nature of the sentence of death is retained only where the Court concludes that the accused had intended to cause death through the act by which death was caused under s 300(a) of the Penal Code. The decision to bifurcate the sentencing of offences under s 300(a) and the other limbs of murder (namely s 300(b), 300(c) and 300(d)) was motivated by the view of policy-makers that given its “intentional”, “cold-blooded” and “deliberate” nature, the mandatory death penalty ought to still apply for offences where the intent to kill can be proven.4  For the other sub-provisions, the Court is now vested with discretion, pursuant to s 302(2) of the Penal Code, to either sentence an accused to death, or life imprisonment with caning. For ease of reference, s 302, as a result of the amendments, now reads as follows:
 
      Punishment for murder
      302.—(1) Whoever commits murder within the meaning of section 300(a) shall be punished with death.
 
      (2) Whoever commits murder within the meaning of section 300(b), (c) or (d) shall be punished with death or imprisonment for life and shall, if he is not punished with death, also be liable to caning.
 
Two points ought to be impressed at this juncture. First, from the wording of s 302(2), it does not appear that the presumptive sentence ought to be that of death. In the same vein, there does not appear to be any presumption that life imprisonment ought to generally be imposed. Instead, given the broad wording of the provision, it would appear that the Court has to be persuaded of the merits of the more appropriate sentence. Indeed, that this is intended to be the architecture of the provision is made particularly clear from the comments of the Minister for Law Mr K Shanmugam during the passage of the Bill that when “a High Court Judge … decides to impose the death sentence in a section 300(c) case, [it is because he] would in fact have been satisfied that the death sentence, as opposed to life imprisonment was warranted on the facts”. Second, it would be useful for practitioners to note that where the Court opines that life imprisonment ought to be given, it has a separate discretion to consider whether caning ought to be imposed in the circumstances. Simply put, it does not follow that an individual who is sentenced to life imprisonment would necessarily have caning imposed on him, even in situations where the exceptions found in s 325 of the CPC do not apply.
 
Two practical implications of the changes also bear quick mention. First, the amendments discussed above necessarily require changes to the manner in which charges involving the offence of murder are framed by the Prosecution. Under the pre-amendment regime, the Prosecution would only be required to state that the murder charge was punishable under s 302 of the Penal Code. It did not, as a matter of practice, state the limb of s 300 that it was intending to prove, since this was irrelevant to the matter of sentence. With the changes, however, the Prosecution will have to state whether the charge brought is one under s 300(a), (b), (c) or (d). Although the timeline for doing so is not set out in the legislative framework, it is submitted that such confirmation of the precise particulars of the charge ought to preferably be made prior to the committal hearing so that the examining Magistrate can consider whether the accused ought to be committed for trial (though this of course does not exclude the possibility that there might be an amendment to the charge thereafter during the course of trial). Where it is assessed to be appropriate, counsel may then decide to make representations regarding the sentence that the Prosecution will be submitting for, and in appropriate cases, parties could potentially consider coming to an agreement on a sentencing position, although the decision as to whether to exercise discretion in favour of life imprisonment over death ultimately resides with the Court.
 
Second, given that the sentence of death is no longer mandatory for non-section 300(a) murder cases, the question might be asked as to whether the Court can accept a plea of guilt from an accused person charged with a non-section 300(a) murder. Given the continued applicability of s 227(3) of the CPC to such cases, it would appear that the Court would not be able to record a plea of guilt unless the accused has been committed to stand trial in the High Court and evidence is led by the Prosecution to prove its case at the trial.
 
Drugs 
 
If the changes to the sentencing regime vis-à-vis murder appear to be sufficiently simple, the same cannot be said about the changes to the death penalty framework for drug-related offences which are considerably more complex and multi-faceted. To some extent, the complexity of the variations made is informed by the quite different motivations underlying the revision of the drug-related laws as opposed to that of murder. While the revisions to the murder laws appear to be informed broadly by the relatively low homicide rate in Singapore, as Deputy Prime Minister Mr Teo Chee Hean impressed during the Parliamentary Debates, the changes made to the architecture of the sentencing framework for drug-related offences were motivated by the need to “keep pace with the evolving operating landscape and more effectively tackle drug trafficking”.
 
It bears reminding that previously, the conviction of an individual of certain offences (involving the trafficking or importing of a quantum of drugs over the prescribed limits) was to be visited with the imposition of the death penalty. Under the revised regime, s 33B of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) vests the Court with discretion to sentence an accused to life imprisonment, with caning in prescribed circumstances, instead of death. However, this discretion only arises where specific conditions exist, namely:
 
a.   the accused proves, on a balance of probabilities, that his involvement was restricted to the role(s) listed in sections 33B(2)(a) or section 33B(3)(a) of the MDA (for ease of reference, we will refer to these conditions, as Parliament did during the debates, cumulatively as the conditions that show that the accused was nothing more than a ‘courier’);
 
      and
 
b.   either:
 
i.    the Public Prosecutor certifies that the accused has substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities within or outside Singapore (the “Substantive Assistance limb”); or
 
ii.   the accused proves he was suffering from such abnormality of mind as substantially impaired his mental responsibility for committing the offence (the “Diminished Responsibility limb”).
 
“Courier”
 
The starting point for the discretionary death penalty regime for drugs is that an accused must first prove that his role was only that of a “courier”. In this regard, the section makes plain that the burden of proof rests on the accused to adduce evidence to this effect and he must convince the Court, on a balance of probabilities, that he is nothing more than a “courier”. If an accused who had trafficked or imported the prescribed amount of drugs is unable to adduce sufficient evidence to convince a Court that he was only acting as a “courier”, he immediately fails to qualify for the discretionary death penalty regime, regardless of whether he satisfies either the Substantive Assistance or Diminished Responsibility limb.  
 
Although the term “courier” is not used in the MDA, it was adopted by Parliament to describe a person whose role, in essence, was confined to transporting, sending or delivering a controlled drug, and who did not play any other role within the drug syndicate. The formulation of what constitutes a “courier” is set out in s 33B(2)(a), and appears to mirror the definition of “traffic” in s 2 of the MDA, with the exclusion of acts of selling, giving, administering and distributing. During the exchange in Parliament, Deputy Prime Minister Mr Teo Chee Hean clarified that the provision was intentionally “tightly-defined” such that an accused who participates in acts such as packing, storing or safekeeping drugs would not qualify as a “courier”.
 
The only judicial pronouncement (as of the time of writing) on how s 33B(2)(a) ought to be interpreted is found in PP v Abdul Haleem bin Abdul Karim & anor [2013] SGHC 110 (“Abdul Haleem”). In that case, Justice Tay Yong Kwang observed that the exception in s 33B(2)(a) was confined solely to those typically referred to as “drug mules” and whose involvement was limited to delivering or conveying drugs from point A to point B. Justice Tay further observed that while s 33B(2)(a) strictly applied only to an accused acting in the narrow role of a courier, it should not be construed pedantically such that an incidental act of storage or safe-keeping by the accused in the course of transporting, sending or delivering the drugs would mean that he was also playing the role of storing or safekeeping drugs within a drug syndicate. While the comments of Justice Tay serve to shed some light on the proper contours of the term “courier”, we ought to add that the question of whether the accused persons were “couriers” was not a matter that was in dispute in Abdul Haleem. As this matter is presently on appeal, it is envisaged that the Court of Appeal would take the opportunity to clarify the precise contours of s 33B(2)(a).
 
Substantive Assistance limb
 
The introduction of the Substantive Assistance sub-provision in s 33B(2)(b) of the MDA was one that generated considerable debate.  As a matter of law, the provision confers the responsibility on the Public Prosecutor to determine whether an accused who had trafficked or imported a capital amount of drugs had substantively assisted the CNB in disrupting drug trafficking activities within or outside Singapore. While some parliamentarians had, at the time, raised concern as to whether the determination of whether there had been assistance on the part of an accused was one that ought to be determined by the Courts,5 others opined that the position set out in legislation represented the only viable position, one that could “brook no argument because the alternative would be to subject the nature, type, content and other details of the offender’s assistance to … public scrutiny in the court”, the result of which would be to “severely compromise our investigative powers and methods”.6 It would be beyond the intended ambit of this note to consider the merits and demerits of either position – suffice it to say that under the revised framework, the determination is within the exclusive province of the Public Prosecutor, and his determination can only be challenged if it is contended that the Public Prosecutor had acted in bad faith, with malice or unconstitutionally. 
 
What is the intended import of the phrase “substantive assistance”? Deputy Prime Minister Mr Teo Chee Hean emphasised that the aim of the provision was to enhance the operational effectiveness of the CNB by allowing investigators to avail themselves of information pertaining to the inner workings of the drug syndicates and, in so doing, maintain a tight zero-tolerance regime while giving the CNB an additional avenue to help in the fight against drugs. To put it another way, mere cooperation, without more, is insufficient. As Minister for Law Mr K Shanmugam stated in Parliament in response to calls by other Parliamentarians for couriers to be certified as having substantively assisted if they had rendered full cooperation (however much or little utility such cooperation might have):
 
      The short answer is that it is not a realistic option because every courier, once he is primed, will seem to cooperate. Remember we are dealing not with an offence committed on the spur of the moment. We are dealing with offences instigated by criminal organisations which do not play by the rules, which will look at what you need, what your criteria are and send it to you. So if you say just cooperate, just do your best, all your couriers will be primed with beautiful stories, most of which will be unverifiable but on the face of it, they have cooperated, they did their best. And the death penalty will then not be imposed and you know what will happen to the deterrent value. Operational effectiveness will not be enhanced. Will we be better off? Will we be worse off?
 
To meet the policy imperatives, therefore, the assistance provided by the accused must enhance the enforcement effectiveness of the CNB to be deemed “substantive”. The focus is accordingly not primarily on the efforts made by the accused to assist, but more pragmatically, on the tangible results arising from such efforts. While examples of “substantive assistance” cited include the provision of information leading to the arrest or detention or prosecution of any person involved in any drug trafficking activity, the phrase appears to have been intentionally left undefined as its determination necessarily turns on the operational parameters and demands surrounding each case. As an aside, we ought to add as well that if an accused person is found to be a “courier” and is certified to have substantively assisted, and the Court is of the view that the death penalty would not be in order, he would be punished with both life imprisonment and caning of not less than 15 strokes (subject of course, to the limitations found in s 325 of the CPC).
 
Diminished Responsibility limb
 
The other exception that Parliament introduced to the mandatory death penalty regime, upon satisfaction that an accused’s role was limited to that of a “courier”, is where the accused suffered from an abnormality of mind which satisfies the diminished responsibility test (as it is termed in the Penal Code quaspecial defence to murder). Section 33B(3)(b) of the MDA adopts the same formulation as that of the defence of diminished responsibility which applies to the offence of murder, such that if a courier proves, on a balance of probabilities, that he was suffering from an abnormality of mind as substantially impaired his mental responsibility for his commission of the offence, he will not be sentenced to death but instead to life imprisonment.
 
By importing the diminished responsibility test for murder, Parliament also sought to codify the three-limb test recently reiterated by the Court of Appeal in Ong Pang Siew v PP [2011] 1 SLR 606, namely that the accused has to prove, on a balance of probabilities, that:
 
1.   He was suffering from an abnormality of mind at the material time;
 
2.   The abnormality of mind arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury; and
 
3.   The abnormality of mind substantially impaired his mental responsibility for his acts and omissions in committing the offence.
 
The question of how the provision would apply in the context of narcotics offences is an open one. At least one Parliamentarian, for example, expressed a view that there may be, in most cases, much less scope for the operation of the doctrine of diminished responsibility vis-à-visdrug offences as compared to murder.7 In his view, the rational and pre-meditated nature of drug offences would typically mean that the accused would have internally made a cost-benefit analysis of the crime. Without the benefit of jurisprudential developments (to the authors’ knowledge, there has hitherto not been a concluded matter where this limb has been invoked), it would be difficult to conclude whether such a view is likely to gain currency in the Courts. We imagine that this is something that the Courts will eventually clarify, at the appropriate juncture and with the appropriate case. However, what is clear is that Parliament endorsed the matter of the determination being largely a question of commonsense based on all the evidence adduced, though it similarly cautioned that the exception was intended to operate in a measured and narrowly defined way.
 
So what do these changes mean in practice? With the revised laws still in their infancy, there have been few judicial pronouncements on how these amendments are to be interpreted, although one imagines that this will change course over time. In the meanwhile, what noticeable changes have come about in pending, ongoing and transitional cases?
 
Since the defence of diminished responsibility was hitherto unavailable to an accused facing a capital drug charge, there was previously no need for a psychiatric assessment to be done at an early stage, save in cases where unsoundness of mind may be an issue. Since the changes have come into force, however, accused persons in such cases which are suspected to involve a capital amount of drugs have been typically subject to a preliminary assessment by the Institute of Mental Health as to his psychiatric condition, similar to psychiatric assessments made for murder suspects. In most cases, therefore, counsel can expect the Prosecution to apply to Court, at a relatively early stage of proceedings, for an order that the accused be remanded for investigations that would include sending the accused to Changi Medical Complex for psychiatric assessment and drug withdrawal observation. In appropriate cases, it is also envisaged that counsel may wish to have the accused examined by a psychiatrist engaged by the Defence as an expert.
 
Furthermore, with the clear policy intent being to encourage and incentivise drug couriers to provide information that may assist the CNB in its operations, persons arrested on suspicion of importing and/or trafficking a capital amount of drugs will be offered an early opportunity to provide information to and assist the CNB. This opportunity will, in general, be extended at the earliest time possible without compromising operations and investigations. 
 
Finally, we ought to highlight that the sentencing parameters for an individual who is found to be a “courier” and to be suffering from diminished responsibility at the time differs in slight respect from those who had substantively assisted in that such an individual would be sentenced to life imprisonment but without caning. Unlike in situations involving “substantive assistance”, it is also clear that the Court has no discretion to impose the death penalty on accused individuals who are able to prove that they are “couriers” and who are found to be suffering from diminished responsibility at the time of the commission of the offence.
 
Transitional Provisions
 
With a moratorium having been imposed against executions since July 2011 pending the review of the death penalty framework, it was necessary to develop a framework to deal with the accused persons who had previously been convicted of a capital offence of murder, or for drug-related offences. By virtue of the relevant transitional provisions, such persons awaiting capital punishment (“PACPs”) can potentially apply to be re-sentenced. Several have, in fact, made such applications. The framework for the transitional provisions differs depending on whether the case falls under the Penal Code (ie for murder) or the MDA (ie for drug-related offences).  Rather than describe the procedural framework in words, it may be of more utility to illustrate the precise workings of the transitional provisions by way of a flowchart.  For murder cases, the cases would be dealt with in the following fashion:
 

Table A Flowchart Showing Transitional Provisions for Cases of Murder

For cases involving drug offences, the following flowchart sets out the necessary process for re-sentencing:



Table B Flowchart Showing Transitional Provisions for Drug-related Cases

 
It ought to be noted that there may be other procedural matters that have to be undertaken. For drug-related cases for example, given that many of those who had been convicted previously had yet, at the time of the changes to the law, to have been provided the opportunity to be assessed by a psychiatrist, or to be asked to give assistance with a view to satisfying the requirements under the new law, these may be necessary steps as well before the curial process for re-sentencing can properly commence.
 
Given those procedural requirements, it is perhaps unsurprising that only two cases (PP v Fabian Adiu Edwin (CC No. 40 of 2009)(“Fabian Adiu”)and PP v Jabing Kho (CC No. 31 of 2009) (“Jabing Kho”)) have completed the re-sentencing process at the time of writing. In Fabian Adiu,the High Court agreed with the Defence that, in view of the PACP’s young age and sub-normal intelligence, a sentence of life imprisonment was preferable to one of death. The High Court accordingly re-sentenced the PACP to life imprisonment with 24 strokes of the cane. The Prosecution did not file an appeal. In Jabing Kho, the High Court accepted that the question of the appropriate sentence to be imposed ought to be informed by the factual circumstances of the case before it. Simply put, the High Court opined that neither life imprisonment nor death ought to serve as the default or starting position for all cases. In the circumstances, given the relative youth of the offender and how his choice of weapon (a piece of wood picked up from the floor) had been opportunistic and improvisational, the Court was of the view that this not a clear-cut case that warranted the death penalty, and accordingly sentenced the individual to life imprisonment and 24 strokes of the cane. The Prosecution has since filed an appeal against this decision, and it is envisaged that the Court of Appeal will take the opportunity to clarify the sentencing considerations in deciding whether to impose the death penalty or life imprisonment with caning.
 
Conclusion
 
It would, perhaps, only be a minor exaggeration to describe the changes to the death penalty regime as a sea-change. While the introduction of a discretionary death penalty regime for both murder and drugs, and the mechanics that have been put in place to facilitate its implementation, may have caught some by surprise, it is important for both prosecutors and practitioners to become au fait with the changes, their underlying motivations and how the above-stated changes might impact their respective responsibilities as prosecutors and defence counsel.
 
While we hope that this article has served to provide practitioners and prosecutors with an insight into some of the workings of the new regime, with cases involving the new regime only just coming before the Courts as we speak, it may be fair to conclude by observing that the journey to understanding the precise contours of the revised framework has just begun. As drug syndicates grapple with the new laws, they can also be expected to evolve their operations. The effectiveness of the new laws is something that will have to be assessed in due course, and as Parliament has stated, if necessary, further strategies in countering drug importation and trafficking will have to be adapted. In the meantime, much like the rest of the Prosecution and Criminal Bar, we look forward to further developments in this area (through judicial pronouncements) in the months to come. 
 


Mohamed Faizal Mohamed Abdul Kadir*
    Deputy Public Prosecutor & Deputy Senior State Counsel
    Attorney-General’s Chambers



Wong Woon Kwong*
    Deputy Public Prosecutor & State Counsel
    Attorney-General’s Chambers
 
*Although the authors are presently prosecutors in the Attorney-General’s Chambers, this piece is authored in their personal capacities and the views expressed herein may not necessarily be reflective of the position of the Attorney-General or the Attorney-General’s Chambers. Any query from the Bar on the workings of the changes to the death penalty regime as set out in this article should be referred to the Criminal Practice committee of the Law Society of Singapore.
 
Notes
1       Singapore Parliamentary Debates, Official Report (12 & 14 November 2012) vol 89.
2       See eg Dr S. Chandra Mohan & Priscilla Chia Wen Qi, “The Death Penalty and the Desirability of Judicial Discretion”, Singapore Law Gazette(March 2013).
3       See eg Tham Yuen-C, “A matter of life & death”, Straits Times(20 October 2012).
4       Singapore Parliamentary Debates, Official Report (14 November 2012) vol 89 (K. Shanmugam, Minister for Law).
5       Singapore Parliamentary Debates, Official Report (12 November 2012) vol 89 (Pritam Singh and Sylvia Lim).
6       Singapore Parliamentary Debates, Official Report (12 November 2012) vol 89 (Edwin Tong Chun Fai).
7          Singapore Parliamentary Debates, Official Report (12 November 2012) vol 89 (Christopher De Souza).