Amazi bin Hawasi v Public Prosecutor

Chan Sek Keong CJ:

[1] On 28 September 2011, Amazi bin Hawasi (“the Petitioner”) was charged under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) with the consumption of morphine, an offence punishable under s 33A of the MDA due to his previous convictions for drug consumption offences (see [2] and [5] below). He was also charged with one count of possession of a controlled drug and one count of possession of drug paraphernalia under ss 8(a) and 9 respectively of the MDA. He pleaded guilty to the charges and was duly convicted on 8 February 2012, with another charge (relating to possession of drug paraphernalia under s 9 of the MDA) taken into consideration for the purposes of sentencing.

[2] Prior to the commission of the aforesaid offences, the Petitioner had been convicted on 18 May 1998 and 2 January 2003 of the consumption of, respectively, morphine and cannabinol derivatives, both of which were then classified as “controlled” drugs. He was sentenced to 12 months’ imprisonment upon the first conviction and eight years’ corrective training upon the second conviction (these two convictions will hereafter be referred to collectively as “the Petitioner’s previous convictions”).

[3] Prior to 20 July 1998, every proscribed drug under the then equivalent of the MDA (viz, the Misuse of Drugs Act (Cap 185, 1997 Rev Ed) (“the MDA (1997 Rev Ed)”)) was classified as a “controlled” drug. Parliament subsequently decided that in view of the extreme harmfulness of opiate drugs (viz, heroin, opium and morphine) and the prevalence of their abuse, they would be additionally classified as “specified” drugs (see Singapore Parliamentary Debates, Official Report (1 June 1998) vol 69 (“Singapore Parliamentary Debates vol 69”) at cols 43–44 (Wong Kan Seng, Minister for Home Affairs)). Therefore, pursuant to the coming into force of the Misuse of Drugs (Amendment) Act 1998 (Act 20 of 1998) (“the 1998 Amendment Act”) on 20 July 1998, morphine was reclassified as a “specified” drug in the Fourth Schedule to the MDA (1997 Rev Ed). Subsequently, cannabinol derivatives were also reclassified as “specified” drugs with the coming into force of the Misuse of Drugs Act (Amendment of Fourth Schedule) Order 2007 (GN No S 402/2007) on 1 August 2007.

[4] Section 33A of the MDA (1997 Rev Ed), which is now s 33A of the MDA, was introduced via the 1998 Amendment Act to provide for “long-term imprisonment and caning for hardcore drug addicts” (see Singapore Parliamentary Debates vol 69 at col 42 (Wong Kan Seng, Minister for Home Affairs)). To achieve this objective, s 33A(1) of the MDA (1997 Rev Ed) provided for a minimum enhanced punishment of five years’ imprisonment and three strokes of the cane in (inter alia) cases where the offender had had no fewer than two previous convictions for consumption of a specified drug under s 8(b) (see s 33A(1)(b) of the MDA (1997 Rev Ed)). The corresponding provisions in s 33A of the MDA now read as follows:

[5] As the Petitioner’s previous convictions occurred after 1 October 1992, they were deemed to be convictions for consumption of “specified” drugs under s 33A(5)(a)(i) read with s 33A(5)(d) of the MDA. Accordingly, the Petitioner was liable to be sentenced to the minimum enhanced punishments prescribed in s 33A(1) of the MDA for the drug consumption offence which he was convicted of on 8 February 2012.

[6] Prior to being sentenced, the Petitioner raised the issue of the constitutionality of s 33A(5)(a) of the MDA, arguing that it violated the principle of separation of powers embodied in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”).

[7] On 22 February 2012, the District Court referred the following question of law (“the Stated Question”) for the High Court’s determination:

[8] Although the Stated Question referred only to s 33A(5)(a) of the MDA (which relates to previous convictions for the offence of drug consumption under s 8(b) of the MDA), the Petitioner also raised in his written submissions the same question of constitutionality in relation to s 33A(5)(c) of the MDA. Section 33A(5)(c) relates to admissions to a Drug Rehabilitation Centre (“DRC”) under the orders of the Director of the Central Narcotics Bureau, and reads as follows:

Although there is no express deeming clause in s 33A(5)(c), the Petitioner alleged that it likewise had a deeming effect in that a DRC admission was defined to include an admission for consumption of drugs which were previously “controlled” drugs (as opposed to “specified” drugs). As such, for completeness, I will deal with both ss 33A(5)(a) and 33A(5)(c) (collectively, “the impugned MDA deeming provisions”) in these grounds of decision.

[9] At the conclusion of the hearing of this Special Case, I answered the Stated Question in the negative, ie, the impugned MDA deeming provisions do not violate the principle of separation of powers embodied in the Singapore Constitution. I now give the reasons for my decision.

[10] The Petitioner argued that the impugned MDA deeming provisions violated the principle of separation of powers as they had the effect of changing the character of previous convictions and previous DRC admissions for consumption of controlled drugs into previous convictions and previous DRC admissions for consumption of specified drugs, and were thus a specific direction to the court to treat the former type of convictions and DRC admissions as being the same as the latter type of convictions and DRC admissions. This, it was argued, was not constitutionally permissible as it would interfere with prior court decisions and intrude into the judicial power. Counsel cited a number of cases concerning the US Constitution, which I will now discuss.

[11] The Petitioner relied principally on the decision of the US Supreme Court in United States v Klein 80 US 128 (1871) (“Klein”). The other US case cited, viz, Pennsylvania v Wheeling & Belmont Bridge Company 59 US 421 (1855), is not relevant as it did not involve the principle of separation of powers.

[12] Klein concerned several laws passed by the US Congress (“Congress”) during the progress of the US Civil War (specifically, on 13 July 1861, 6 August 1861 and 17 July 1862) to regulate the subject of forfeiture, confiscation or appropriation to public use without compensation of private property, whether real or personal, of non-combatant enemies. In exercise of his powers under the law of 17 July 1862 (“the 17 July 1862 law”), the US President issued a proclamation on 8 December 1863 (“the 1863 Pardon Proclamation”) granting a full pardon, with full restoration of rights of property (except as to slaves), to every person who agreed to take and subscribe to a prescribed oath of allegiance, and who henceforth kept the same inviolate. On 12 March 1863, Congress passed another law for the collection of abandoned property in insurrectionary districts within the US. This law (“the 12 March 1863 law”) allowed any person to reclaim his property upon proof that he had not given aid or comfort to the enemy. One V F Wilson (“Wilson”) satisfied the conditions under the 1863 Pardon Proclamation. Upon his death in 1865, his administrator (“Klein”) filed a petition in the US Court of Claims under the 12 March 1863 law to recover certain cotton which Wilson had abandoned to US treasury agents and which the latter had sold. The 17 July 1862 law under which the US President issued the 1863 Pardon Proclamation was subsequently repealed on 21 January 1867.

[13] The US Court of Claims held, on 26 May 1869, that Wilson had been entitled to receive the proceeds of sale of the cotton and ordered payment of US$125,000 to Klein as his administrator. The US government gave notice of appeal on 3 June 1869 and filed its appeal on 11 December 1869. Prior to the hearing of the appeal, a similar claim by one Padelford was decided by the US Court of Claims in Padelford’s favour, and the US government likewise filed an appeal to the US Supreme Court. On 30 April 1870, the US Supreme Court dismissed the appeal relating to Padelford’s claim (see United States v Padelford 9 Wallace 531 (1870)). Soon after this, Congress passed another law which came into force on 12 July 1870, to which was attached the following proviso (“the 1870 Proviso”) (see Klein at 129):

[14] The above words in the 1870 Proviso effectively nullified the effect of the 1863 Pardon Proclamation and the restoration of Wilson’s property rights. The US Supreme Court held that the 1870 Proviso was unconstitutional on two separate grounds. The first ground was that the proviso, in directing that pardons should not be considered by the US Supreme Court and in denying the jurisdiction of the court, was (at 146–147):

[15] In short, the US Supreme Court found in Klein that Congress was effectively purporting to exercise the judicial power under the guise of legislation.

[16] The second ground on which the US Supreme Court held the 1870 Proviso to be unconstitutional was that it breached the principle of separation of powers under the US Constitution as it infringed the constitutional power of the Executive to grant pardons. The court said at (148–149):

[17] In my view, Klein is not applicable to the impugned MDA deeming provisions for the simple reason that they do not have the legal effect which the Petitioner submits that they have. These provisions neither purport to change, nor have the effect of changing, the character and/or nature of previous convictions and previous DRC admissions for consumption of controlled drugs into previous convictions and previous DRC admissions for consumption of specified drugs. They do not annul the effects of a previous conviction and/or a previous DRC admission for drug consumption activities. The impugned MDA deeming provisions simply provide that previous convictions and previous DRC admissions for drug consumption activities are to be treated as aggravating factors for the purposes of determining whether the accused is subject to the enhanced punishment regime set out in s 33A of the MDA. In this regard, there is nothing in the Singapore Constitution that prohibits Parliament from legislatively prescribing conditions which, upon being satisfied, will trigger the application of minimum enhanced punishments (see the companion grounds of decision in Mohammad Faizal bin Sabtu v Public Prosecutor [2012] SGHC 163 at [40]–[42] and [44]–[45]).

[18] In his submissions, the amicus curiae referred to the approach of the High Court of Australia in The Queen v Humby, Ex parte Rooney (1973) 129 CLR 231 and Re Macks and Others, Ex parte Saint (2000) 204 CLR 158, where certain deeming provisions in, respectively, the Matrimonial Causes Act 1971 (Cth) and the Federal Courts (State Jurisdiction) Act 1999 (SA and Qld) were held to be valid as they did not direct the court to treat invalid orders and ineffective judgments as valid. In contrast, in Bainbridge v Minister for Immigration and Citizenship (2010) 181 FCR 569 (“Bainbridge”), the Federal Court of Australia declared as unconstitutional Item 7 of Schedule 4 of the Migration Legislation Amendment Act (No 1 of 2008) (Cth) (“Item 7”), which directed the court to treat any transitional (permanent) visa issued by the Minister for Immigration and Citizenship under the Migration Act 1958 (Cth) (“the 1958 Act”) as a visa which “had been granted” such that it could be cancelled under s 501 of that act if the visa holder did not pass a prescribed character test (contra the earlier ruling by the Australian Federal Court in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 (“Sales”) that a transitional (permanent) visa issued under the 1958 Act was not a visa which “had been granted” and thus could not be cancelled under s 501 of that Act). Buchanan J reasoned as follows (at [77] of Bainbridge):

[19] On the basis of the above-mentioned decisions (and also Nicholas v The Queen (1998) 193 CLR 173 and Chu Kheng Lim and Others v The Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1 (“Chu Kheng Lim”)), the amicus curiae submitted that while, pursuant to the principle of separation of powers, Parliament may not enact a deeming provision which directs the court as to the manner and outcome of the exercise of its judicial power, the impugned MDA deeming provisions do not have the effect of either:

(a) converting a previous conviction and a previous DRC admission for consumption of a “controlled” drug into a previous conviction and a previous DRC admission for consumption of a “specified” drug (since the underlying nature of the drug which is now classified as a “specified” drug remains unchanged from when it was formerly classified as a “controlled” drug); or

(b) directing the court to set aside, disregard, modify or make a finding of fact or law which would be inconsistent with a previous conviction for consumption of a “controlled” drug and/or to impose in its place a previous conviction for consumption of a “specified” drug.

[20] The amicus curiae further submitted that in contrast to the impugned legislative provisions in Klein, Chu Kheng Lim and Don John Francis Douglas Liyanage and Others v The Queen [1967] 1 AC 259, the deeming clause in the impugned MDA deeming provisions:

[21] In short, the amicus curiae submitted that the impugned MDA deeming provisions “[did] not purport to make any judicial determination legislatively”.

[22] In conclusion, it is evident that the impugned MDA deeming provisions neither seek to change the character and/or nature of earlier executive or judicial orders, nor interfere with the effects and legal rights consequent upon such orders. Instead, the only substantive effect of the impugned MDA deeming provisions is with regard to sentencing for prospective convictions. I therefore answered the Stated Question in the negative.