Adnan bin Kadir v Public Prosecutor

Chan Sek Keong CJ:

[1] This is an appeal against sentence by Adnan bin Kadir (“the Appellant”). He pleaded guilty in the District Court to one count of importing 0.01g of diamorphine into Singapore, which is an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the current MDA”), and was sentenced to five years’ imprisonment and five strokes of the cane.

[2] The Appellant is a 41-year old male. The charge which was proceeded upon by the Prosecution (“the Diamorphine Charge”) reads as follows:

[3] The relevant parts of the Statement of Facts which the Appellant admitted to in the District Court (“the SOF”) are as follows:

[4] In addition to the Diamorphine Charge, the Appellant was also charged with importing into Singapore, on the same occasion (ie, at or about 6.36am on 21 December 2011), one packet containing 0.05g of crystalline substance, which was analysed and found to contain methamphetamine (“the Methamphetamine Charge”).

[5] On 28 May 2012, the Appellant (who was unrepresented) initially claimed trial in the court below. After noting that the Appellant had earlier indicated at a pre-trial conference that he wished to plead guilty, the senior district judge (“the SDJ”) asked him whether he had a defence to importation. The Appellant stated that he wished to plead guilty. The SDJ reminded the Appellant that he should be sure that he wished to plead guilty. The SDJ also pointed out to the Appellant that he was the only person who would know if he had a defence. The Appellant then pleaded guilty to the Diamorphine Charge and consented to the Methamphetamine Charge being taken into consideration for the purpose of sentencing.

[6] The Appellant had no antecedents. In his oral mitigation plea, he stated that: (a) the drugs were for his own consumption; (b) his wife had passed away in 2010; and (c) he had five children and an elderly mother-in-law to support. He stated that he was remorseful and pleaded for leniency.

[7] The Deputy Public Prosecutor (“DPP”) prosecuting the case, DPP Joshua Lai (“DPP Lai”), took issue with the Appellant’s assertion that the drugs were for his own consumption because an earlier version of the SOF had stated that the Appellant intended to deliver the drugs to someone in Singapore. Nonetheless, DPP Lai submitted that this discrepancy had no legal effect on the Appellant’s plea of guilt on the ground that personal consumption was not a defence to a charge of importation.

[8] The SDJ sentenced the Appellant to the mandatory minimum sentence of five years’ imprisonment and five strokes of the cane. In his written grounds of decision (as reported in Public Prosecutor v Adnan bin Kadir [2012] SGDC 203), the SDJ pointed out that during his perusal of the court files, he had seen the earlier version of the SOF, which stated that the Appellant intended to deliver the diamorphine to someone in Singapore. However, he went on to hold that this was immaterial:

[9] In support of his appeal against sentence, the Appellant filed a written mitigation plea dated 6 July 2012 in which he reiterated, inter alia, that the drugs were for his own consumption. He also stated that a urine test which was conducted on him on the day of his arrest (viz, 21 December 2011) had produced a positive result.

[10] At the oral hearing on 2 August 2012, the Appellant again repeated his statement that the drugs which he brought into Singapore were intended for his own consumption. When I queried the DPP appearing in this appeal, DPP Ruth Wong (“DPP Wong”), as to whether if what the Appellant said was true, it could constitute a defence to the charge of importation, she stated that it would not. I queried her further on why, for instance, if the Appellant had been charged for trafficking in the same drugs, he would be entitled to plead as a defence that the drugs were for his own consumption, but he could not do so if he had been charged for importing the same drugs. Such an anomaly would be obvious if the drugs involved were diamorphine (as in this case) and the quantity found on him was 15.01g of diamorphine. DPP Wong’s response was that the offence of “importation” was different from trafficking in that importation as defined in the current MDA meant the act of bringing into Singapore, and that the purpose of doing so was irrelevant.

[11] In view of this anomaly, I decided to look further into the nature of the offence of importation to satisfy myself that as a matter of law the Appellant would not be able to plead possession of the drugs for personal consumption as a defence to the charge of importation. Accordingly, I adjourned the hearing and directed DPP Wong to file written submissions on this issue for further consideration.

[12] The written submissions, which were drafted by DPPs Lee Lit Cheng and Wong Woon Kwong (hereinafter referred to as “the DPPs”), reiterated that there is no defence of personal consumption to the offence of importation under s 7 of the current MDA. The purpose of the importation is only relevant as a sentencing consideration. In support of this argument, the DPPs relied on the legislative history of the current MDA and also the decisions of the courts on the meaning of importation. I shall examine first the statutory framework and its legislative history.

[13] The relevant sections of the current MDA are as follows:

[14] It can be seen from the above provisions that the drug offences under the current MDA are set out in the following chronological order: (1) trafficking; (2) manufacturing; (3) importation/exportation; (4) possession; and (5) consumption. This order of offences was first enacted in 1973 by the Misuse of Drugs Act 1973 (Act 5 of 1973) (“the 1973 MDA”).

[15] The earliest predecessor of the current MDA is the 1973 MDA. In moving the Misuse of Drugs Bill 1972 (Bill 46 of 1972) (“the Misuse of Drugs Bill 1972”), ie, the Bill which was later enacted as the 1973 MDA, at its second reading, the then Minister for Health and Home Affairs explained the rationale of the Bill as follows (see Singapore Parliamentary Debates, Official Report (16 February 1973) vol 32 at cols 414–418):

[16] In 1975, the 1973 MDA was amended (via the Misuse of Drugs (Amendment) Act (Act 49 of 1975)) to introduce the mandatory death penalty as a punishment for the trafficking or importation of large quantities of controlled drugs. The then Minister for Home Affairs and Education explained that this was necessary in the interest of deterrence (see Singapore Parliamentary Debates, Official Report (20 November 1975) vol 34 at cols 1379–1385):

[17] The above passages clearly express the legislative objective of the 1973 MDA and of the amendments in 1975, which was to combat drug trafficking by imposing very severe penalties on drug dealers in order to deter the spread of controlled drugs in Singapore through trafficking. At the same time, the new legislative framework intended to create and maintain a clear distinction between drug dealers and drug addicts. This intention was carried into effect by the creation of a sharp distinction in penalties between, on the one hand, the offences of manufacturing, importation, exportation, and trafficking, and, on the other hand, the offences of possession and consumption.

[18] The Dangerous Drugs Act (Cap 151, 1970 Rev Ed) (“the DDA”), which was one of the predecessors of the 1973 MDA, expressly defined “import” as follows:

However, when the 1973 MDA repealed the DDA and set up an entirely new framework to combat the trafficking of controlled drugs, the 1973 MDA omitted any definition of the term “import”. The DPPs submit, correctly in my view, that the omission to define “import” in the 1973 MDA indicates that Parliament must have intended, vis-à-vis the offence of drug importation under s 7 of the current MDA, to adopt the definition of “import” in s 2(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) (“the IA”), which is as follows:

According to the DPPs, a further reason why Parliament must have intended the definition of “import” in s 2(1) of the IA to apply to the offence of drug importation under s 7 of the current MDA is because the definition in the IA is consistent with the definition of “import” in the Single Convention on Narcotic Drugs 1961 (“the Convention”), which Singapore acceded to on 15 March 1973. Article 1(1)(m) of the Convention defines “import” as follows:

The result of adopting the IA definition was that the words “otherwise than in transit” in the DDA definition were omitted.

[19] The DPPs point out that while the definition of “import” in s 2 of the DDA explicitly excluded drugs in transit, the Convention definition of “import” in Art 1(1)(m) means the physical transfer of drugs into a State, which, the DPPs submit, is a definition that necessarily includes drugs in transit. According to the DPPs, the broader definition of “import” in Art 1(1)(m) is consistent with Art 31, the relevant portions of which are as follows:

The DPPs submit that the provisions of Arts 31(10), 31(11) and 31(14) make it clear that the Convention imposes an obligation on its signatories (“Party States”) to ensure that their territories are not used as transit points for the illegal movement of drugs.

[20] In addition, the DPPs point out that the definition of “import” in Art 1(1)(m) of the Convention does not include any requirement that such import be for the purpose of trafficking. Instead, they submit, the Convention imposes an obligation on Party States to criminalise the mere physical transfer of drugs into their territories, and this is apparent from Art 36(1) of the Convention, which provides as follows:

[21] The first part of the DPPs’ argument based on legislative history is simply that (a) Parliament, in omitting to define “import” in the 1973 MDA, intended to apply the definition of “import” in the IA; and (b) that definition must be given a meaning that is consistent with the meaning of “import” as contemplated by the Convention.

[22] I would agree with this argument, but it does not carry the DPPs’ overall argument further because the IA definition applies unless “there is something in the subject or context inconsistent with such construction”. Similarly, the Convention definition is expressed to apply throughout the Convention “[e]xcept … where the context otherwise requires”. Thus, the crucial question which is not answered by the DPPs’ submission is whether the context of the IA or the Convention requires the word “import” to be interpreted other than according to its literal meaning as defined in s 2(1) of the IA or Art 1(1)(m) of the Convention. For this purpose, I proceed on the basis that both definitions have the same meaning, except that the Convention definition is to be preferred because it is clearer and it describes the actual process of bringing in the drugs, ie, “the physical transfer of drugs from one State to another State”. If this definition is applied to the facts in the present case, this would mean that the Appellant had imported the drugs into Singapore within s 7 of the current MDA because he had physically transferred the drugs from Johor to Singapore. This conclusion would give effect to a legislative policy (if that be the policy) that absolutely proscribes the bringing in of any drugs into Singapore, and that any breach of that policy would be punishable with greater punishment than if the accused person had distributed the drug to a consumer or to another distributor (see [53] below).

[23] But, is this the legislative policy? In order to answer this question, it is necessary to consider the legislative purpose of the offence of importation in the context of the current MDA. What then is the purpose of s 7 of the current MDA? Section 9A(1) of the IA requires a court to adopt a purposive approach in interpreting a statute (Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183 at [57], and Chief Assessor and another v First DCS Pte Ltd [2008] 2 SLR(R) 724 at [10]). In his second reading speech on the Misuse of Drugs Bill 1972 that became the 1973 MDA, the Minister emphasised that the 1973 MDA was intended to bring the control of dangerous drugs “in line with those in force in other countries closely concerned with the spread of the addictive use of such drugs within their own countries and the increased international traffic which supplies such demands”, and to incorporate the different categories of control recommended by the United Nations into domestic law (see [15] above). This statement was most likely a reference to the Convention because Singapore acceded to the Convention only a month after the second reading of the Misuse of Drugs Bill 1972. It is possible, therefore, that the categories of control in the Convention may support the DPPs’ contention that the offence of importation is committed once the drugs are brought into Singapore regardless of the purpose of the importation.

[24] Reading the Convention as a whole, it is clear that the mischief which it is targeted at is the international trade in illicit drugs (ie, drug trafficking). It was not the first international treaty designed to combat drug trafficking. The authors of Commentary on the Single Convention on Narcotic Drugs, 1961 (United Nations, 1973) (“Commentary on the Single Convention”) state (at p 426), “Article 36 [of the Convention] deals with the subject-matter covered in articles 2, 4, 5, 6, 7, 8, 9, 14 and 15 of the [Convention of 1936 for the Suppression of the Illicit Traffic in Dangerous Drugs (“the 1936 Geneva Convention”)]”. The preamble to the 1936 Geneva Convention states, “Having resolved ... to combat by the methods most effective in the present circumstances the illicit traffic in ... drugs and substances ... [emphasis added]”. The name of the 1936 Geneva Convention itself also indicates that its purpose is to combat drug trafficking. Various commentators agree that the 1936 Geneva Convention was clearly targeted at drug trafficking: see A Century of International Drug Control (United Nations Office on Drugs and Crime, 2008) at p 56; Jay Sinha, The History and Development of the Leading International Drug Conventions (February 2001); David Bewley-Taylor and Martin Jelsma, Fifty Years of the 1961 Single Convention on Narcotic Drugs: A Reinterpretation (Transnational Institute, March 2011) at p 5; and Julia Buxton, The Historical Foundations of the Narcotic Drug Control Regime (World Bank Policy Research Working Paper, March 2008) at p 16.

[25] The 1936 Geneva Convention’s objective was also taken up in the Convention. The authors of Commentary on the Single Convention state (at p 112):

The authors of Commentary on the Single Convention go on to state as follows (at pp 426–427):

[26] Confirmatory evidence of the Convention’s purpose can be found in Art 35 which provides as follows:

Article 35 of the Convention explicitly addresses the problem of illicit trafficking of drugs across national borders and requires Party States to suppress such activities within their borders or to assist each other in doing so across international borders. Illicit trafficking in drugs has two aspects: (a) illicit trafficking within national borders; and (b) illicit trafficking across national borders (ie, where drugs are brought out of one State into another State). Drugs can only be brought into one State from another State or brought out of one State to another State by physical means, ie, by transporting them in one form or another by some means or other by land, sea or air. However, such transportation is carried out not for its own sake, but rather for a particular purpose which, as contemplated by the Convention, is to distribute them at enormous profits to consumers (resulting in their eventual ruination). Importation or exportation is, by itself, a neutral act (from the perspective of the fight against drug trafficking) of physically transferring the drugs from one State to another State. It is the trafficking of such imported or exported drugs that the Convention is intended to target.

[27] Accordingly, on a purposive interpretation of the Convention, the word “import” in Art 36(1) of the Convention connotes the requirement of distribution or intended distribution to other persons for their consumption or onward trafficking. The word “import” in Art 36(1) of the Convention does not connote personal consumption because (a) personal consumption is not trafficking, and (b) Art 36(1) of the Convention makes no express mention of personal consumption of drugs. The Convention was not intended to oblige Party States to criminalise the mere physical transfer of drugs from one Party State to another Party State. Rather, its purpose was to provide an international legal framework for all Party States to criminalise the transfer of drugs from one Party State to another Party State (a) for distribution in that Party State (whether for profit or otherwise), or (b) for export from that Party State to a third Party State for distribution there (whether for profit or otherwise). Article 36(1) of the Convention, which obliges Party States to criminalise various forms of conduct, subject to domestic constitutional limitations, must be read in light of this purpose of the Convention. So, for instance, Art 36(1) of the Convention does not oblige Party States to criminalise the “dispatch, dispatch in transit, transport, importation [or] exportation” of drugs if this conduct is done for the purpose of personal consumption.

[28] Articles 31(10), 31(11) and 31(14) of the Convention are concerned with improving international co-operation to stem the flow of illicit drugs by (a) creating a licensing system for the legal import and export of drugs, and (b) ensuring that Party States do not permit the unlicensed transit of drugs through their territories. These provisions of the Convention, which deal with “consignments of drugs”, clearly contemplate the movement of very large quantities of drugs and are consistent with the purpose of the Convention which is to combat drug trafficking. Furthermore, the DPPs’ reliance on these provisions is misplaced because these provisions merely impose an obligation on Party States at the international level and do not purport to deal with the domestic criminal law of Party States at all.

[29] The foregoing analysis of the purpose of the Convention (and of its predecessor, the 1936 Geneva Convention) shows that the DPPs’ contention, viz, that the offence of drug importation under s 7 of the current MDA is committed by the mere act of bringing drugs into Singapore, is based on a literal interpretation of some provisions of the Convention and is not justified or supported by the purpose of the Convention.

[30] For the avoidance of doubt, I note that although Art 36(1) of the Convention, interpreted in a purposive manner, does not oblige Party States to criminalise personal consumption, this does not mean that Party States are prohibited by the Convention from doing so. Article 39 of the Convention provides as follows:

[31] The second limb of the DPPs’ argument relies on their interpretation of decisions of the Court of Appeal which, in their view, have consistently held that the offence of importation under s 7 of the current MDA is committed once controlled drugs are brought or caused to be brought into Singapore without authorisation, regardless of the purpose for which the drugs are imported. The DPPs refer to the following decisions: Ko Mun Cheung and another v Public Prosecutor [1992] 1 SLR(R) 887 (“Ko Mun Cheung (CA)”), Ng Kwok Chun and another v Public Prosecutor [1992] 3 SLR(R) 256 (“Ng Kwok Chun (CA)”), Tse Po Chung Nathan and another v Public Prosecutor [1993] 1 SLR(R) 308 (“Tse Po Chung Nathan (CA)”) and Tan Kheng Chun Ray v Public Prosecutor [2012] 2 SLR 437 (“Tan Kheng Chun Ray”). I shall now discuss these cases.

[32] In Ko Mun Cheung (CA), the two appellants arrived at Changi Airport on a flight from Bangkok. They were each charged under s 7 of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) (“the 1985 MDA”) with importing about 1.1kg of diamorphine into Singapore. The High Court found that both appellants had come into Singapore only with a view to boarding a flight to Amsterdam the next day; they had no intention of delivering the drugs to anyone in Singapore (see Public Prosecutor v Ko Mun Cheung and another [1990] 1 SLR(R) 226 (“Ko Mun Cheung (HC)”)). One of the arguments raised in the appellants’ defence was that they were not guilty of the offence of importing diamorphine into Singapore because they had not intended to deliver the drugs to anyone in Singapore. The High Court rejected this defence at [21]–[25] of Ko Mun Cheung (HC) as follows:

[33] On appeal, the Court of Criminal Appeal (“CCA”) affirmed the decision of the High Court. At [20] of its judgment, the CCA said:

[34] In Ko Mun Cheung (HC) and Ko Mun Cheung (CA), the issue of personal consumption as a defence to the capital charge did not arise as the appellants did not raise the defence. Their defence was that the drugs were meant for distribution not in Singapore but only in Amsterdam, and that they had agreed to be the couriers because they were in debt to one “Ah Lock”; they themselves were not drug addicts. The decisions of the High Court and of the CCA accordingly do not support the DPPs’ argument.

[35] The facts in Ng Kwok Chun (CA) were slightly different from those in Ko Mun Cheung (CA). The two appellants arrived at Changi Airport on a flight from Phuket which landed at about 2.20pm on 26 April 1989. They had a connecting flight to Brussels, which was scheduled to depart at 6.15pm on the same day. The first appellant was carrying 2.3kg of diamorphine while the second appellant was carrying 2.5kg of diamorphine. They were arrested in the transit area of Changi Airport. Their defence was that since they had not gone through passport control, they had not entered Singapore, and therefore could not have imported the drugs into Singapore. The High Court rejected this defence in Public Prosecutor v Ng Kwok Chun and another [1992] 1 SLR(R) 159 for the following reasons:

[36] On appeal, the CCA dismissed the appeal and said:

[37] Again, the issue of personal consumption did not arise in that case. However, the High Court stated (obiter at [23] of its judgment), that “the word “import” must include the bringing in of any merchandise from a foreign country for sale or use in Singapore as well as for transhipment or distribution overseas”. The CCA agreed with the High Court’s interpretation at [14] of its judgment (see [36] above) in holding that “the Act is directed not simply at the control of the use and distribution of the drugs in Singapore, but also at the movement of drugs through Singapore for distribution in other countries”. Central to both statements is the focus on the distribution and use (other than for personal consumption) of the imported drugs. The appellants had clearly intended to transport the large quantity of diamorphine to Brussels for the purpose of distribution or use (other than for personal consumption) there. As in Ko Mun Cheung (CA), the appellants in this case had agreed to be the couriers because they were in debt; they themselves were not drug addicts.

[38] In Tse Po Chung Nathan (CA), the two appellants arrived at Changi Airport on a flight from Phuket which landed at 2.24pm on 28 February 1989. They had a connecting flight to Amsterdam at 9.55pm on the same day. They were each carrying about 2.1kg of diamorphine. They were arrested in the transit lounge of Changi Airport. Their defence was identical to that raised by the appellants in Ng Kwok Chun (CA). They argued that they had not “imported” the drugs into Singapore because they had not entered Singapore. The CCA held as follows:

[39] The final case which the DPPs relied upon is Tan Kheng Chun Ray. In that case, the appellant drove into Singapore from Malaysia via the Causeway on 10 October 2009. At the Woodlands Checkpoint, an inspection of the appellant’s car revealed the presence of drugs and drug paraphernalia. The appellant pleaded guilty to seven charges under the current MDA for, inter alia, the importation, possession and consumption of controlled drugs. The first charge was for importing four packets of granular/powdery substance containing not less than 14.99g of diamorphine (“the First Charge”). The second charge was for importing two packets of crystalline substance containing not less than 1.12g of methamphetamine (“the Second Charge”). The appellant was sentenced by the High Court to 22 years’ imprisonment and 15 strokes of the cane on the First Charge, and five years’ imprisonment and five strokes of the cane on the Second Charge (see Public Prosecutor v Tan Kheng Chun Ray [2011] SGHC 183). The High Court ordered that the sentences for these two charges (collectively, “the First and Second Charges”) should run consecutively (with the sentences for the five remaining charges running concurrently), with the result that the total sentence was 27 years’ imprisonment and 20 strokes of the cane.

[40] The appellant appealed against sentence. One of his grounds of appeal was that the one transaction rule applied to the First and Second Charges, and therefore the High Court should not have ordered that the sentences in respect of these charges were to run consecutively. At [17] of its judgment, the Court of Appeal said:

The DPPs submit that the Court of Appeal in the above passage had “clearly addressed its mind to the factual matrix of the appellant having imported methamphetamine for his own consumption, and concluded that the motive behind the importing of drugs was relevant only as a sentencing consideration”.

[41] I do not agree with this submission insofar as it implies that the Court of Appeal had rejected the defence of personal consumption to a charge of importation. Such a defence was not raised and not addressed by the Court of Appeal. What the Court of Appeal said at [17] of its judgment (see [40] above) was that “motive in committing an offence is a relevant sentencing consideration” [emphasis added], and not that motive is irrelevant for other purposes. Furthermore, the Court of Appeal was only concerned with whether the two offences, viz, importation of diamorphine for the purpose of trafficking and methamphetamine for the purpose of personal consumption, committed at the same time by the appellant could be subject to the one-transaction rule. The Court of Appeal held (at [18] of its judgment) that the one-transaction rule should apply in respect of the First and Second Charges because these offences were committed in one instance insofar as the appellant had imported both the diamorphine and methamphetamine into Singapore at the same time via the same modus by transporting them in his vehicle, and therefore the sentences for the First and Second Charges should be served concurrently.

[42] To summarise the holdings in the four decisions of the CCA and the Court of Appeal discussed above, none of them addressed the question of law before me as to whether the offence of importation under s 7 of the current MDA is committed where the purpose of the importation is not to distribute the drugs either within Singapore or in another State but for the purpose of the importer’s own consumption.

[43] This question of law, however, arose directly in Public Prosecutor v Majid Bin Abdul Rahim [2007] SGDC 222 (“Majid”). The accused was charged with importing four packets of granular/powdery substance containing 1.23g of diamorphine into Singapore under s 7 of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the 2001 MDA”). He raised the defence that the drugs were meant for his own consumption and therefore he was not guilty of the offence of importation, but only of possession of controlled drugs under s 8(a) of the 2001 MDA. The district judge rejected this argument on the following grounds:

[44] The district judge sentenced the accused to six years’ imprisonment and five strokes of the cane for the importation charge. The accused appealed against conviction and sentence in Magistrate’s Appeal No 149 of 2007 (“MA 149/2007”). His sole ground of appeal against conviction was that the drugs were meant for his own consumption and therefore he was not guilty of the offence of importation, but only of possession of controlled drugs under s 8(a) of the 2001 MDA. His appeal against conviction and sentence was dismissed by a High Court judge in October 2007 without giving any written grounds. As my perusal of the appeal record in MA 149/2007 discloses that there was no submission based on the legislative history and purpose of the 1973 MDA (and the subsequent amendments in 1975 which introduced the mandatory death penalty) as well as that of the Convention, I will examine afresh the reasoning of the district judge in Majid to determine its soundness in law.

[45] In Majid, the district judge relied on three reasons in holding that there is a difference in kind between the offence of trafficking and the offence of importation. The first reason was that the case law on trafficking was irrelevant because the charge against the accused was that of importation and not trafficking. The second reason, which can be dismissed immediately as erroneous (see [34] above), was that the High Court in Ko Mun Cheung (HC) decided, implicitly, that personal consumption was not a defence to the offence of importation. The third reason was that the offence of importation carries a higher punishment than trafficking in relation to Class B and Class C controlled drugs, and therefore they are different offences.

[46] With respect to the first reason – that the case law on trafficking was irrelevant because the charge was that of importation – the district judge did not go on to consider whether the reasoning in the case law on trafficking could nonetheless be applied where the charge was that of importation.

[47] Section 2 of the current MDA (see [13] above) defines “traffic” as doing or offering to do one of the following acts: selling, giving, administering, transporting, sending, delivering or distributing. The courts have consistently held that where an accused person is charged with trafficking by transportation, it is not sufficient merely to prove that he had transported the drugs because he must also have transported the drugs for the purpose of distribution to another person or persons. As Lord Diplock said in Ong Ah Chuan and another v Public Prosecutor [1979–1980] SLR(R) 710 (“Ong Ah Chuan”):

[48] The Privy Council in Ong Ah Chuan adopted this interpretation of the offence of trafficking because it found that Parliament had not intended the scope of this offence to include the situation where the accused person had transported drugs for personal consumption. This reasoning was applied subsequently by the Court of Appeal in Lau Chi Sing v Public Prosecutor [1988] 2 SLR(R) 451 (“Lau Chi Sing (CA)”). In that case, the accused arrived in Singapore from Kuala Lumpur and checked into a hotel in Geylang. On the following day, he took a taxi to Changi Airport. He was arrested at the airport after he checked in for a flight to Amsterdam. He was subsequently charged with trafficking in 242.85g of diamorphine by transporting it from Geylang to Changi Airport. The accused’s evidence was that he had transported the drugs from Geylang to Changi Airport for distribution in Amsterdam and not in Singapore. One of the arguments raised in his defence was that he had not in law committed the offence of drug trafficking because the intended destination of the drugs was Amsterdam and not Singapore. The High Court rejected this defence, holding as follows (see Public Prosecutor v Lau Chi Sing [1987] SLR(R) 617):

[49] The decision of the High Court was upheld on appeal: see Lau Chi Sing (CA). The CCA stated:

[50] The question then is whether the reasoning in Ong Ah Chuan and Lau Chi Sing (CA) applies where the charge is one of importation. The reasoning in those cases applies with equal force where the charge is one of importation as, in my view, Parliament did not intend the scope of the offence of importation to include the case of the accused person bringing into Singapore drugs for his personal consumption. The offence of importation is, in substance, trafficking across national borders. The enactment of the 1973 MDA and its subsequent amendment in 1975 to impose more severe punishments was expressly intended to combat drug trafficking while at the same time creating and preserving a distinction between drug dealers, who would bear the full brunt of the harsh penalties, and drug addicts, who would not (see [15]–[17] above). This dual objective of our drugs legislation has been consistently reiterated over the years when the scope of the mandatory death penalty was widened to include opium, cannabis, cocaine and methamphetamine (see Singapore Parliamentary Debates, Official Report (30 November 1989) vol 54 at cols 862–864, and Singapore Parliamentary Debates, Official Report (1 June 1998) vol 69 at cols 40–43). Interpreting the offence of importation to include importation for the purpose of personal consumption would be inconsistent with Parliament’s intention to maintain the distinction between the more harmful activity to the general public of a drug trafficker and the less harmful activity of a drug addict bringing in drugs for his own consumption. The same reasoning would apply in the case of the offence of exportation.

[51] In addition, interpreting the offence of importation to require that the importation be for the purpose of trafficking will not undermine the intention of Parliament to combat drug trafficking. Where an accused person imports for the purpose of personal consumption, he harms himself and not the larger class of drug addicts. Of course, where he imports more drugs than is necessary for his own consumption intending to distribute the quantity in excess, he will also be guilty of trafficking with respect to the quantity in excess. An inference of such intention may be drawn from the quantity of drugs imported (see [61] below). Where an accused person imports for the purpose of trafficking, the drugs will destroy the lives of many others. As the High Court observed in Public Prosecutor v Tan Kiam Peng [2007] 1 SLR(R) 522 at [8]:

Construed in this way, the offence of unauthorised importation of controlled drugs under s 7 of the current MDA deals with the cross-border trafficking (by transportation) of controlled drugs, while the offence of trafficking under s 5 of the current MDA deals with the trafficking of controlled drugs within Singapore.

[52] The courts must always consider the purpose of the law and not simply the letter of the law. A useful illustration of a nuanced, purposive, approach is the decision of the Court of Appeal in Ng Yang Sek v Public Prosecutor [1997] 2 SLR(R) 816 (“Ng Yang Sek”). In that case, the accused was arrested while travelling in a taxi and found in possession of 3,449g of opium. Another 13,956.1g of opium was found in his house. He was charged with two charges of trafficking under s 5 of the 1985 MDA. The trial judge found that the accused was a practitioner of Chinese medicine and that the opium in his possession was used solely for the manufacture of medicinal plasters. Nonetheless, the trial judge convicted the accused of trafficking and sentenced him to the mandatory death penalty. On appeal, the Court of Appeal set aside the conviction on the charges of trafficking for the following reasons:

Why are the punishments for importing higher than those for trafficking in relation to Class B and Class C controlled drugs?

[53] What then of the third reason given by the district judge in Majid that the offence of importation is different and distinct from the offence of trafficking because the punishment for the first offence is higher than the second offence with respect to Class B and Class C controlled drugs? Why should there be a difference in the punishments and how can this difference be accounted for except on the basis that they are two entirely different offences? Unfortunately, the parliamentary materials do not address this issue, and therefore the court must try to identify a probable basis for this difference. In my view, a reasonable explanation for the difference, and one that goes to the heart of the law in combating the spread of drug consumption within a State, is that the physical transfer of drugs from one State into another State increases the stock of drugs in the second State and thereby potentially increases the harm to its residents in making available for trafficking more drugs than before. Therefore, the offence of importation is potentially more harmful than the offence of trafficking an existing stock or supply of drugs which reduces that stock or supply over time. As the exportation of drugs to another State is the mirror image of importation (with the difference being one of perspective), the same explanation applies equally to the offence of exportation.

[54] However, the higher potential harm of importation as compared to trafficking does not justify interpreting the offence of importation as being distinct from the offence of trafficking which is not committed where the accused person transports drugs for the purpose of personal consumption (as the Privy Council held in Ong Ah Chuan). First, Parliament had clearly intended to distinguish between drug dealers and drug addicts (see [50] above) and it is consistent with, and would further, this intention to interpret the offence of importation as being committed only where the accused person had imported the drugs for the purpose of trafficking. Secondly, the higher potential harm of importation only arises where the drugs are in fact imported for the purpose of trafficking. To import drugs is to bring them into Singapore from another State. Drugs can only be brought into Singapore by some form of conveyance that effects the physical transfer (in the words of Art 1(1)(m) of the Convention) of the drugs from another State into Singapore. The word “import” therefore merely describes the process of transporting the drugs physically from another State into Singapore. The extent of the harm caused by such importation depends on the purpose of the importation. Ex hypothesi, there is no increase in the stock of drugs for trafficking if the accused person imports for personal consumption.

[55] The same rationale is also applicable to explain the severe punishments for the unauthorised manufacture of controlled drugs in Singapore which is an offence under s 6 of the current MDA. The word “manufacture” is defined in s 2 of the current MDA as follows:

It may be noted that the definition says nothing about the purposes for which a controlled drug is manufactured. The Second Schedule to the current MDA prescribes the death penalty for the offence of manufacturing morphine, diamorphine, cocaine or methamphetamine, whatever the quantity that may be manufactured. For other Class A drugs, the minimum punishment is 10 years’ imprisonment and 5 strokes of the cane and the maximum punishment is 30 years’ imprisonment or life imprisonment and 15 strokes of the cane. For Class B drugs, the punishment is the same as for Class A drugs (other than morphine, diamorphine, cocaine and methamphetamine). For Class C drugs, the minimum punishment is 5 years’ imprisonment and 5 strokes of the cane and the maximum punishment is 20 years’ imprisonment and 15 strokes of the cane. These punishments are more severe than those for importation and trafficking.

[56] It can reasonably be argued that the manufacture of controlled drugs in Singapore will increase the stock of drugs available for distribution to consumers and must therefore be punished more severely than the offence of trafficking of an existing stock of drugs which thereby reduces the stock in the course of time. Yet, it is even more reasonable to argue that it cannot have been the legislative intent that if someone manufactures only 0.01g of morphine, diamorphine, cocaine or methamphetamine, he shall suffer the death penalty even though he then consumes it himself or destroys it. That would be an absurd interpretation of the offence of manufacturing controlled drugs without authorisation. It is absurd because the mere manufacturing of controlled drugs is, per se, a neutral act (from the perspective of the fight against drug trafficking). It causes no harm to others if the manufactured drugs are not distributed for consumption by others. If the manufactured drugs are used for personal consumption, the manufacture of these drugs does not increase the stock or supply of drugs for distribution. In my view, the sensible and correct approach is to construe the offence of unauthorised manufacture of controlled drugs under s 6 of the current MDA as being committed only if the drugs are intended for distribution to drug addicts within Singapore or outside Singapore. This interpretation is consistent with the legislative intent as explained in Parliament in November 1975 by the then Minister for Home Affairs and Education (see [16] and [50] above).

[57] While the punishments for manufacturing are higher than those for importation, this does not indicate that the offence of manufacturing was intended by Parliament to include the situation where the accused manufactured drugs for personal consumption. Parliament had clearly intended to preserve a distinction between drug dealers and drug addicts, and interpreting the offence of manufacturing to require that the manufacturing be for the purpose of trafficking would not undermine Parliament’s intention to combat drug trafficking (see also [54] above in the context of the offence of importation).

[58] I therefore conclude that the higher punishments prescribed for the unauthorised importation or manufacture of controlled drugs is not a sufficient reason for rejecting personal consumption as a defence to a charge of importation or manufacture of such drugs. Interpreting these offences as requiring that the importation or manufacture be done for the purpose of trafficking will lend coherence to the statutory framework in the current MDA which is intended (a) to control the distribution of controlled drugs within and across national borders, in line with the objectives of the Convention, and (b) to create and maintain a distinction in terms of punishment between drug dealers and drug addicts.

[59] This interpretation also lends consistency to the law in two ways. First, it allows for the possibility that an accused who is charged with a capital offence of importing more than 15g of diamorphine can escape the mandatory death penalty by satisfying the court that part of the diamorphine was imported for personal consumption, just as an accused who is charged with trafficking more than 15g of diamorphine is presently entitled to do the same (see, for instance, Abdul Karim bin Mohd v Public Prosecutor [1995] 3 SLR(R) 514 at [38]–[39]). Where an accused is charged with trafficking by transportation, the only difference is that in the importation scenario the accused had transported the drugs across national boundaries while in the trafficking scenario he had transported the drugs within Singapore. In my view, this is an immaterial difference because the harm that may potentially be caused to society depends on the purpose for which the drugs were transported, regardless of whether they were transported within or into Singapore. Secondly, it avoids the anomaly that a Singapore citizen or permanent resident is guilty of consuming controlled or specified drugs under s 8(b) of the current MDA if he consumes the drugs overseas (s 8A(1) of the current MDA), which is an offence carrying a maximum punishment of ten years’ imprisonment, a fine of $20,000, or both, whereas he is guilty of drug importation under s 7 of the current MDA the moment he brings the drugs into Singapore for the purpose of personal consumption in Singapore, which is an offence carrying, where Class A drugs are concerned, a mandatory minimum sentence of five years’ imprisonment and five strokes of the cane, with a maximum punishment of 30 years’ imprisonment and 15 strokes of the cane (assuming that the offender imports a small quantity of drugs). This would give rise to an absurd outcome given that the harm to society resulting from the offender’s actions is the same in both situations (ie, where the offender consumes drugs overseas and where he imports drugs for personal consumption in Singapore).

[60] In the present case, the Appellant had imported 0.35g of granular/powdery substance containing 0.01g of diamorphine (which formed the subject of the Diamorphine Charge which was proceeded upon) and 0.05g of crystalline substance containing methamphetamine (which formed the subject of the Methamphetamine Charge which was taken into consideration for the purpose of sentencing). The 0.01g of diamorphine which the Appellant had imported is below the prescribed quantity that would trigger the presumption under s 17 of the current MDA (“the s 17 presumption”) that the Appellant had the drug in his possession for the purpose of trafficking. The question therefore arises as to the burden of proving that the drug in the present case was intended for personal consumption. In the ordinary case of an accused person found in possession of a controlled drug in a quantity that does not trigger the s 17 presumption, the burden of proving that he had it in his possession for the purpose of trafficking would be on the prosecution if the defendant is charged with an offence of trafficking under s 5 of the current MDA. As the Court of Appeal recently reiterated in AOF v Public Prosecutor [2012] 3 SLR 34 at [2], it is a fundamental principle that the Prosecution bears the legal burden of proving its case against the accused person beyond a reasonable doubt.

[61] What is the correct analysis of the Appellant’s conduct in the present case? He had transported the drugs from Johor to Singapore in his car, thereby importing (in a literal sense) the drugs into Singapore. He could have been charged for trafficking by transporting the drugs from where he crossed into the Singapore side of the Causeway to the Woodlands Checkpoint where he was arrested, and if he had been so charged, the burden would be on the Prosecution to prove beyond a reasonable doubt that the drug was transported for the purpose of trafficking. Lord Diplock stated in Ong Ah Chuan:

In order to discharge this burden, the Prosecution may argue, as the Privy Council noted in Ong Ah Chuan, that the court should draw an inference from, inter alia, the weight of the drugs imported that those drugs were imported for the purpose of trafficking.

[62] In the context of this case which involves a charge of drug importation, there is no reason why the fundamental principle that the Prosecution bears the burden of proving its case beyond a reasonable doubt (see [60] above) should not apply. Parliament had intended that an essential ingredient of the offence of importation should be that the accused person had imported the drugs for the purpose of trafficking (see [48]–[51] above). The burden is thus on the Prosecution to prove beyond a reasonable doubt that the Appellant had brought the drug into Singapore for the purpose of trafficking. If the Prosecution is unable to discharge this burden, the Appellant can only be convicted of the offence of unauthorised possession of a controlled drug under s 8(a) of the MDA.

[63] However, in my view the Prosecution may rely on the s 17 presumption if an accused person is proved to have had in his possession a quantity of drugs which exceeds the specified amounts in s 17 of the current MDA, and he is charged with an offence of drug importation under s 7 of the current MDA. The rationale of the s 17 presumption is not predicated on the formal classification of offences in the current MDA; rather, it is premised on the assumption that persons in possession of large quantities of drugs (far in excess of what would be needed for normal daily consumption) must have had the drugs in their possession for the purpose of trafficking. As the then Deputy Prime Minister and Minister for Home Affairs explained during the second reading of the Misuse of Drugs (Amendment) Bill 2005 (Bill 40 of 2005) (see Singapore Parliamentary Debates, Official Report (16 January 2006) vol 80 at col 2095):

This rationale applies with equal force where a person is caught importing, exporting or manufacturing large quantities of drugs. In such cases, the burden will then shift to the accused person who will have to prove, on a balance of probabilities, that he had imported, exported or manufactured (as the case may be) for the purpose of personal consumption or for some other purpose wholly unconnected with trafficking.

[64] In view of my finding that the offence of importation of a controlled drug under s 7 of the current MDA is committed only if the drug is brought into Singapore for the purpose of distribution, it becomes necessary to consider what are the appropriate orders to make in the present case given that the Appellant is appealing only against sentence, but on the basis that the drugs imported by him were for his own consumption. It is pertinent to note that the DPPs have accepted that the quantity of diamorphine imported by the Appellant (one packet of 0.35g of granular/powdery substance containing 0.01g of diamorphine) will fill about one and a half straws, although they added that the amount of doses produced will vary according to an individual’s rate of consumption.

[65] Since the Appellant is unrepresented by counsel, I could proceed with his appeal as if it were an application for revision under s 400 of the Criminal Procedure Code 2010 (Act 15 of 2010) (“the CPC”). However, this procedure would not be necessary because s 390(3) of the CPC, read with s 394 thereof, is wide enough to vest in an appellate court the power to set aside a conviction based on a plea of guilty. Section 390(3) of the CPC provides as follows:

Section 394 of the CPC provides as follows: