Effrizan Kamisran v Public Prosecutor

[4] The appellant, Effrizan Kamisran (“the Appellant”), who was 39 years old at the time of sentencing below, has a long history of drug-related offending. In 2005, he was sentenced to eight years’ imprisonment and eight strokes of the cane for drug trafficking. Following his release, he re-offended and was subsequently punished in 2012 with seven years and three months’ imprisonment and six strokes of the cane for drug consumption pursuant to the LT regime.

[5] In October 2018, the Appellant was again arrested on suspicion of committing offences under the MDA. In March 2019, the Appellant pleaded guilty to a repeat LT-2 consumption charge for consumption of methamphetamine under s 8(b)(ii) punishable under s 33A(2) of the MDA; an enhanced possession charge for methamphetamine under s 8(a) punishable under s 33(1) of the MDA; and a possession of utensils charge under s 9 punishable under s 33(1) of the MDA.

[7] The Appellant, who was unrepresented, appealed against his sentence. While he did not provide any specific reasons why his sentence was manifestly excessive, his skeletal arguments named one Mohamed Salim bin Abdul Aziz (“Salim”), who apparently faced similar charges but was sent for treatment in a DRC instead of being prosecuted. In material part, his skeletal arguments read as follows:

[8] The Appellant had also mentioned Salim in his mitigation plea before the DJ, when he asserted that Salim was “converted to DRC” because he was categorised as a “pure abuser”. According to him, Salim was admitted to a DRC on 12 April 2018 even though his case had been dealt with “before the amendment bill was made”. By the “amendment bill” the Appellant was presumably referring to the Misuse of Drugs (Amendment) Bill 2019 (“the MDA Bill”), which was passed by Parliament on 15 January 2019.

[9] As explained by the Minister for Home Affairs and Minister for Law Mr K Shanmugam in the second reading speech for the MDA Bill, from 16 January 2019 (the “Effective Date”), pure drug abusers who admitted to drug consumption would be admitted to a DRC regardless of how many times they had previously been detained (Singapore Parliamentary Debates, Official Report (15 January 2019) vol 94:

[11] In view of the concerns outlined in the previous paragraph, the Prosecution was directed to answer these questions, without derogating from their submissions filed earlier in July 2019:

(a) What is the nature and scope of the discretion afforded to the Director under s 34(2)(b) of the MDA, and how does this cohere with the power of the AG under Art 35(8) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) to direct criminal prosecutions?

(b) Does the Director have a duty to give reasons for the way in which he exercised his discretion under s 34(2)(b) of the MDA?

The hearing in August 2019 was adjourned to allow the Prosecution time to respond.

[12] The Prosecution filed its submissions together with an affidavit of the Deputy Superintendent of the CNB (“the CNB affidavit”) in September 2019. The court then directed that a three-judge coram be convened and a young amicus curiae (“YAC”) be appointed. Mr Tan Ruo Yu was appointed as YAC. The Prosecution filed further submissions and a second CNB affidavit (“the Second CNB Affidavit”) in December 2019, and the YAC filed his submissions in January 2020.

[13] At the hearing before us in February 2020, we directed that the Prosecution also address us on, amongst other issues, the significance of the certification issued by the Health Sciences Authority (“HSA”) in respect of the urine tests referred to in s 34(2) of the MDA; the nature of the interaction between the Public Prosecutor and the CNB when handling potential prosecutions or DRC admissions; the correctness of Lim Keng Chia in relation to the abuse of process doctrine; and the circumstances of Salim’s previous conviction(s). The YAC was also invited to file further submissions. We are most grateful to the YAC for his diligent and thorough submissions.

[14] In March 2020, the Prosecution filed its second set of further submissions, a third CNB affidavit (“the Third CNB Affidavit”) and other supporting affidavits. In April 2020, the YAC filed his further submissions. After receiving these we sought clarification from the parties on two further issues. All parties tendered further submissions in May 2020, including a fourth CNB Affidavit that was tendered by the Prosecution (“the Fourth CNB Affidavit”).

[15] The Appellant relied on his skeletal arguments, reproduced at [7] above, and a further letter to the court dated 18 May 2020. We will turn to the contents of this letter below (at [42]–[44]).

[16] The Prosecution explained how the Director’s exercise of discretion does not interfere with prosecutorial discretion by setting out the entire decision-making process for determining whether an individual is prosecuted, admitted to a DRC, or allowed to go free. Although there appeared to be some inconsistencies between the position taken by the Prosecution in its July 2019 submissions and the Second CNB Affidavit, these were resolved in the Third CNB Affidavit. The Prosecution’s final position is as follows.

(a) In respect of the urine tests, both urine specimens must test positive for the same controlled drug, and be so certified by the HSA. Trace results for one or both urine tests would mean there was no qualifying result.

(b) In respect of the medical examination or observation, this requires an assessment by a doctor that the subject showed signs and symptoms consistent with drug withdrawal (whether “mild”, “moderate”, “moderately severe”, or “severe”) under the Clinical Opiate Withdrawal Scale (“COWS”), as recorded in a medical report received by the CNB. A “negative” assessment would mean there was no qualifying result.

(c) In respect of a hair test, this requires the specimen to test positive for a controlled drug, and be so certified by the HSA.

[18] The CNB explained that fulfilling at least one of the three tests is a necessary precondition to the Director’s exercise of discretion. In practice, if there is no qualifying result for the urine tests, the CNB will refer the matter to the Attorney-General’s Chambers (“the AGC”) to decide whether a prosecution should nonetheless be initiated. Should the AGC decline to prosecute, the Director will then consider if there is a qualifying result for either the medical examination or observation, or the hair test. If there is no qualifying result, the subject will be released.

[19] Assuming there is a qualifying result for at least one of the three tests, the Director will next consider whether the person would benefit from DRC admission. The Prosecution explained in the Third CNB Affidavit that this was considered holistically and the relevant factors “include[] but are not limited to”:

[21] Some mention should also be made of the difference before and from the Effective Date (see [9] above) in the Director’s general approach indicated at [19] above. Essentially, whether an individual is liable for punishment under the LT regime is no longer relevant.

(b) From the Effective Date, the general approach towards pure drug abusers was, as noted in the Minister’s speech referred to at [9] above, to channel them into the DRC system without regard to whether they were LT-liable. The AGC had, on 20 November 2018 authorised the CNB to exercise the power to waive prosecutions against such persons from the Effective Date.

[22] The Prosecution made two further arguments in support of the view that the Director’s exercise of discretion does not interfere with prosecutorial discretion:

(a) The Director’s discretion under s 34(2)(b) of the MDA is an executive power exercised for the purposes of individual and public health, with the object of treating and rehabilitating drug addicts. DRC admissions are not meant to be punitive.

(b) As was held in Lim Keng Chia, the Director’s exercise of discretion under s 34(2)(b) has no legal bearing on whether criminal proceedings will or may be brought, and in fact cannot preclude the AG from exercising his prosecutorial powers to institute criminal proceedings. It follows based on that precedent that a DRC admission is not a conviction and a person may be charged and convicted of the same act of consumption that led to the DRC admission.

[25] The Prosecution further argued that the Director has no duty to provide reasons for the exercise or non-exercise of his discretion under s 34(2)(b) MDA. No such requirement is provided for in the MDA, in contrast with the position under other statutory provisions that deprive an individual of personal liberty, such as those in the Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed) and the Internal Security Act (Cap 143, 1985 Rev Ed). Nor is there any duty to give reasons at common law. The Prosecution made the following key points (it also proffered some other arguments which we do not find persuasive and have not set out here).

[26] First, reasons are not required at common law for administrative decisions except where necessary to ensure fairness. Fairness in this context does not necessitate the giving of reasons by the Director. The absence of reasons would not prevent affected persons from understanding how the decision was arrived at given the need for an admission to drug consumption or otherwise affect their ability to challenge the decision. There are also statutory safeguards to check the Director’s exercise of discretion, namely s 39 of the MDA, which permits complaints to be made to a Magistrate in respect of improper detention in a DRC by reason of any misconduct or breach of duty by any officer under the MDA; and ss 34 and 38, which vest the power to decide on the ultimate duration of an individual’s DRC stint in the Review Committee as opposed to the Director. For similar reasons, accountability is also not compromised.

[28] Third, requiring the Director to disclose the reasons for his decision when challenged runs counter to the presumption of legality that attaches to decisions of public officials (see Muhammad Ridzuan bin Mohd Ali v Attorney-General [2015] 5 SLR 1222 at [36]).

[29] Finally, according to the CNB Affidavit, Salim was admitted to a DRC because: (a) only trace amounts of morphine were detected in his urine samples and he was not found with any drugs during his arrest (thus posing evidentiary difficulties in proving the fact of drug consumption); (b) he had admitted to drug consumption; and (c) he was found to display signs and symptoms consistent with moderate drug withdrawal after medical examination. Salim was released from the DRC on 11 October 2019.

[30] In contrast, the Appellant was not admitted to a DRC because there was sufficient evidence to prosecute him for drug consumption punishable under s 33A of the MDA. The HSA had certified that his urine samples were positive for monoacetylmorphine (from diamorphine consumption) and methamphetamine. The Appellant was also found in possession of diamorphine, methamphetamine, a straw and drug utensils when he was arrested.

[31] The Prosecution argued that in view of their different circumstances, the varying outcomes in Salim’s and the Appellant’s cases do not suggest actual or apparent bias on the Director’s part. That said, the Second CNB Affidavit admitted to a lapse in procedure in deciding whether to admit Salim to a DRC. It turned out that the CNB had opted to review Salim’s matter after receiving the court’s queries, and found that it should have first referred Salim’s case to the AGC to determine if Salim could and should be prosecuted before admitting Salim to the DRC. In view of this, the CNB referred Salim’s matter to the AGC in November 2019. The AGC directed that the CNB issue Salim with a stern warning in lieu of prosecution for drug consumption. This, however, had no bearing on or relevance to the Appellant’s case.

[32] The YAC was instructed to address the issues of the Director’s discretion under s 34(2)(b) of the MDA, the correctness of Lim Keng Chia, and the Director’s duty to give reasons.

[35] While initially taking a different view, the YAC’s final position on the abuse of process point was that bringing a same-conduct DRC/prosecution would be an abuse of process. DRC admissions involve the deprivation of personal liberty. It is simply unfair and unjust to imprison the person again for the same conduct upon his release from DRC, especially considering that Parliament’s intention is for the drug user to be prosecuted or sent to DRC but not both. Additionally, same-conduct DRC/prosecutions distort the operation of the LT regime under the MDA, which is meant to impose enhanced punishment only when there was drug consumption on at least two previous occasions.

[37] In the first situation, fairness dictates that the Director be required to let the individual know that the results of the medical examination or observation, urine tests or hair test referred to in s 34(2) of the MDA show that he has consumed drugs. Beyond that, the Director should not be required to give reasons. The YAC mainly relied on similar reasons to those raised by the Prosecution, including the lack of any statutory requirement and undue burden on the Director. He also argued, citing English authorities, that where an administrative decision involves a clear application of policy that has already been published, the reason is simply the policy. A duty to give reasons will not arise where the explanation for the decision is obvious.

[39] We consider that there are three issues for us to determine in disposing of this appeal.

[40] In our judgment, there is no merit in the Appellant’s substantive appeal. We agree with the DJ’s reasoning in his grounds of decision (“GD”). The sentence of seven years six months’ imprisonment for the LT-2 charge was appropriate, and if anything was somewhat on the lenient side, in view of the separate LT-2 charge that was taken into consideration, and the Appellant’s recent antecedents which include another LT-2 charge for which he had been sentenced to seven years three months’ imprisonment (GD at [43] and [46]). The sentence of three months for the possession of drug utensils was in line with the median sentence passed on similar offenders for offences under s 9 of the MDA (GD at [55]). Running these sentences consecutively would not offend the totality principle (GD at [76]–[80]). In any event, the DJ was obliged to run at least two of the sentences consecutively. The aggregate sentence that was meted out to the Appellant was therefore not inherently objectionable in any way.

[41] The only potential issue of concern that was raised by the Appellant was the comparison of his situation with Salim’s. Although, as noted above, the Appellant made several arguments in his letter dated 18 May 2020 based on the different treatment accorded to himself and Salim, in the final analysis, we are satisfied that these do not assist him.

[42] First, the Appellant argued that “the date and the CNB’s referral of Salim’s matter to AGC and the report above and on (Para 8/9) [of the Second CNB Affidavit] clearly contradicts”. The Appellant is correct in pointing out that in some respects how Salim was dealt with contradicts the usual practice. But the fact that the CNB might have made a mistake in dealing with Salim is admitted by the Prosecution, and would not change the analysis in relation to the Appellant. To put it very simply, two wrongs do not make a right. More fundamentally, there is nothing in the way that Salim was dealt with that in any way affects the approach that should be taken with respect to the Appellant.

[43] Second, the Appellant, referring to paras 9(b) and 13(b) of the Second CNB Affidavit and para 5 of the CNB Affidavit, also sought to contend that in substance, he and Salim were similarly situated in respect of the possession charge. In fact, this is not entirely correct. The Prosecution has always maintained that “[n]o drugs or utensils were found on Salim at the time of his arrest” or “when he was arrested” [emphasis added]. Instead, a straw of heroin linked to Salim was “recovered on a bus about six weeks prior” to Salim’s arrest. In contrast, the Appellant was found “in possession” of methamphetamine, diamorphine and drug utensils [emphasis added]. In short, in the Appellant’s case, there was no evidentiary difficulty with establishing the fact of drug possession, whereas the evidential position was less clear with respect to Salim.

[44] Third, the nub of the Appellant’s complaint that he and Salim were treated differently even though they were similarly situated was misplaced at a more fundamental level. The Prosecution explained that it faced “evidentiary difficulties” in Salim’s case, because the HSA only detected trace amounts of morphine in his urine samples. The evidentiary significance of a trace result for morphine was explained in the affidavit of Dr Lui Chi Pang (“Dr Lui”), a Senior Consultant Forensic Scientist at the HSA; see further at [17(a)] above. Dr Lui deposed that the HSA reports trace amounts of morphine where the concentration of morphine in the sample is within the range of 0.2 to 0.5 µg/ml and the codeine to morphine ratio is less than 0.5. The presence of trace amounts of morphine could be due either to the consumption of heroin (diamorphine) or of codeine. Reports stating that trace amounts of morphine were detected are supplied to the enforcement agencies to be used only for monitoring purposes, and are not intended to be produced for court use. In the Appellant’s case, however, the HSA report indicated not a trace result but a positive finding that “the urine sample was found to contain the following: Methamphetamine”.

[48] In our judgment, there is a need to distinguish between three situations in determining whether the Director is required to give reasons.

[49] First, there is no need give reasons where the decision is made to refer an individual to the AG for him to decide whether to prosecute. Strictly speaking, in this situation the question of the Director giving reasons does not even arise. It is not the Director but the AG who determines how the individual’s case will be dealt with, and there is no requirement for the AG to disclose his reasons for making a particular prosecutorial decision (Ramalingam Ravinthran v Attorney-General [2012] 2 SLR 49 at [74]). If the AG does prosecute the individual, the process is subject to the court’s oversight and eventual decision on the merits.

[52] We observe that this decision is not premised on the presumption of constitutionality, contrary to the Prosecution’s suggestion. We reiterate the observations of the Court of Appeal in Saravanan Chandaram v Public Prosecutor [2020] SGCA 43, where it held (at [154]) that the presumption can only be a starting point that legislation or other actions will not presumptively be treated as suspect or unconstitutional, for otherwise the court would in effect be presuming the constitutional validity of the very thing that is being challenged.

[55] In Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 (“Phyllis Tan”), the Court of Three Judges explained the concepts of abuse of process and abuse of prosecutorial discretion in these terms:

[58] We accordingly dismiss the Appellant’s appeal against sentence.

[59] We again express our gratitude to the YAC for his assistance in this matter.