Mohammad Faizal bin Sabtu v Public Prosecutor

Chan Sek Keong CJ:

[1] This Special Case (viz, Special Case No 1 of 2012 (“Special Case No 1”)) and Special Case No 2 of 2012 (see the companion grounds of decision in Amazi bin Hawasi v Public Prosecutor [2012] SGHC 164) state two separate questions of law for the court’s determination as to the constitutionality of certain provisions in s 33A of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Section 33A of the MDA (also referred to hereafter as “s 33A” for short where appropriate) prescribes mandatory minimum (and enhanced) punishments for convicted drug offenders who have previously consumed specified drugs (as defined in s 2 of the MDA). The material provisions in s 33A for the purposes of this Special Case are as follows:

[2] Section 33A(5)(c) of the MDA defines “admission” as an admission to an “approved institution” (in essence, a drug rehabilitation centre (“DRC”)) for rehabilitation pursuant to s 34(2) of the MDA. Under s 34(1) of the MDA, the Director of the Central Narcotics Bureau (“the CNB Director”) may direct “any person whom he reasonably suspects to be a drug addict” to be medically examined or observed by a Government medical officer or a medical practitioner. Under s 34(2) of the MDA, if, as a result of such medical examination or observation, it appears to the CNB Director that it is necessary for the person examined or observed:

[3] The specific provisions in s 33A which are in issue in this Special Case are ss 33A(1)(a), 33A(1)(d) and 33A(1)(e) (collectively, “the impugned s 33A MDA provisions”). In summary, pursuant to these provisions, the court has to impose the minimum enhanced punishments in s 33A(1) in cases where the offender has had not less than:

(a) two previous admissions to a DRC (see s 33A(1)(a)); or

(b) one previous DRC admission coupled with one previous conviction for the offence under s 8(b) of the MDA (“s 8(b) offence”) of consuming a specified drug (see s 33A(1)(d)); or

(c) one previous DRC admission coupled with one previous conviction for the offence under s 31(2) of the MDA (“s 31(2) offence”) of failure to provide a urine specimen (see s 33A(1)(e)).

[4] The stated questions in this Special Case and Special Case No 2 of 2012 raise a fundamental issue of constitutional law in the context of the principle of separation of powers as to the role of the Legislature, the Executive and the Judiciary in the punishment of offenders under our criminal justice system. Specifically, the issue in this Special Case is whether the impugned s 33A MDA provisions constitute an impermissible legislative intrusion into the judicial power and accordingly violate the principle of separation of powers embodied in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”). The stated question in this Special Case also raises additional issues as to whether the impugned s 33A MDA provisions violate Arts 9 and/or 12 of the Singapore Constitution. I should point out at this juncture that although ss 33A(1)(d) and 33A(1)(e) were raised in addition to s 33A(1)(a) in this Special Case, the submissions of the petitioner, Mohammad Faizal bin Sabtu (“the Petitioner”), dealt primarily with s 33A(1)(a) only. The analysis and discussion in these grounds of decision will therefore centre on s 33A(1)(a). My findings and rulings, however, apply equally to ss 33A(1)(d) and 33A(1)(e) as well.

[5] The Petitioner was charged on 1 April 2011 with a number of offences under the MDA, including one count of consumption of morphine under s 8(b)(ii) of the MDA. Section 33A(1)(a) of the MDA was applicable to him as he had two previous DRC admissions dated 29 August 2007 and 21 October 2008 respectively. If convicted of the consumption charge preferred against him, he would have to suffer the enhanced punishment of a minimum of five years’ imprisonment and three strokes of the cane under ss 33A(1)(i) and 33A(1)(ii) respectively of the MDA. The Petitioner pleaded guilty to the charges brought against him, and applied to the High Court for leave to state a Special Case for determination by the High Court after a similar application to the District Court was rejected. On 3 February 2012, I directed the District Court to state the following question of law (“the Stated Question”) for determination by the High Court:

[6] Although the Stated Question was asked in the context of the principle of separation of powers, the Petitioner also argued, in the course of his submissions, that the impugned s 33A MDA provisions (in particular, s 33A(1)(a)) violated Arts 9 and/or 12 of the Singapore Constitution. After hearing the submissions of the parties and also those of the amicus curiae (to whom I now express my gratitude for the very comprehensive brief which he submitted in these proceedings), I answered the Stated Question in the negative. I now give the reasons for my decision, as well as my rulings on the specific arguments canvassed by the parties.

[7] The Petitioner’s case that s 33A(1)(a) of the MDA is unconstitutional may be summarised as follows:

(a) Section 33A(1)(a) directs the court to treat DRC admissions (which are executive orders) as convictions (which are judicial orders) in order to impose the enhanced minimum punishments in s 33A(1) on an offender. This legislative direction as to the effect of prior executive acts in the sentencing process intrudes into the sentencing function, which is part of the judicial power, and therefore violates the principle of separation of powers (citing Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51 (“Kable”), Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311 (“Dato’ Yap Peng”), Moses Hinds and Others v The Queen [1977] AC 195 (“Hinds”), Don John Francis Douglas Liyanage and Others v The Queen [1967] 1 AC 259 (“Liyanage”), Lim Keng Chia v Public Prosecutor [1998] 1 SLR(R) 1 (“Lim Keng Chia”), Public Prosecutor v Boon Kiah Kin [1993] 2 SLR(R) 26 and United States v Klein 80 US 128 (1871)).

(b) Section 33A(1)(a) also violates Art 12 of the Singapore Constitution in subjecting an offender with two prior DRC admissions to the same treatment as an offender with two prior court convictions (citing Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489 (“Yong Vui Kong”)).

(c) The prescribed mandatory minimum sentence of five years’ imprisonment and three strokes of the cane under ss 33A(1)(i) and 33A(1)(ii) respectively offends Art 9 of the Singapore Constitution as it is manifestly excessive, disproportionate and arbitrary, given that an offender who has two prior DRC admissions is effectively a first-time offender (citing Ong Ah Chuan and another v Public Prosecutor [1979–1980] SLR(R) 710 (“Ong Ah Chuan”)).

[8] The Prosecution’s arguments in response to the Petitioner’s arguments may be summarised as follows:

(a) Section 33A(1)(a) of the MDA is not a legislative or executive usurpation of the judicial power. Punishment is Parliament’s prerogative, and must be distinguished from the sentencing discretion, which is the province of the courts. Parliament is entitled to set upper and/or lower limits on the punishment to be meted out for an offence, while the courts may only impose the sentences which they are authorised by law to impose (citing Hinds and State of South Australia v Totani and Another (2010) 242 CLR 1 (“Totani”)).

(b) Section 33A(1)(a) does not transfer or have the effect of transferring judicial power to the Executive as the CNB Director does not, when making a DRC admission order, exercise a judicial function (citing Lim Keng Chia). The prior DRC admissions and prior convictions stated in s 33A(1) are merely the prescribed conditions that serve to trigger the imposition of the enhanced minimum punishments under the s 33A(1) sentencing scheme (citing Hinds and Totani).

(c) Parliament is entitled to enact legislation which provides for harsher punishment for a particular class of offenders in furtherance of a societal object as long as there is a rational relation between the legislative classification and that object. The enhanced punishment of drug offenders who have been shown to have a sustained drug dependency is an intelligible differentia that bears a rational relation to a valid social object (citing Ong Ah Chuan and Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103).

[9] The amicus curiae’s brief asserts the following principles as being applicable to the Stated Question:

(a) The judicial power includes the power to determine the measure of punishment (citing Chu Kheng Lim and Others v The Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1 (“Chu Kheng Lim”) and Kok Wah Kuan v Public Prosecutor [2007] 5 MLJ 174 (“Kok Wah Kuan”)).

(b) In the absence of a strict separation of powers between the various constitutional organs in a State, the Executive is not precluded from having a role in the imposition and administration of punishment so long as its role in this regard does not usurp or interfere with the Judiciary’s exercise of the judicial power to determine the measure of punishment (citing R v Federal Court of Bankruptcy; Ex parte Lowenstein (7 March 1938, unreported) and S v Dodo [2001] 5 BCLR 423 (CC) (“Dodo”)).

(c) The Legislature cannot, consistently with the principle of separation of powers, enact laws which have the effect of vesting in the Executive the judicial power to determine the punishment to be imposed in a particular case (citing Hinds, Reginald Deaton v The Attorney General and the Revenue Commissioners [1963] IR 170 (“Deaton”), Mohammed Muktar Ali v The Queen [1992] 2 AC 93 (“Muktar Ali”) and Kok Wah Kuan).

(d) While the Legislature may prescribe the jurisdiction to be conferred on the courts, the legislative powers of the Legislature do not extend to the enactment of laws which have the effect of directing the courts as to the manner and outcome of the exercise of their discretion (citing Liyanage and Chu Kheng Lim).

[10] On the basis of these principles, the amicus curiae submitted that the Stated Question ought to be answered in the negative for the following reasons:

(a) In ordering a DRC admission, the CNB Director is not exercising a judicial function (citing Fraser Henleins Proprietary Limited v Cody (1945) 70 CLR 100 and Lim Keng Chia).

(b) The impugned s 33A MDA provisions do not have the effect of vesting in the CNB Director the power to determine the measure of punishment to be imposed in a particular case (citing Hinds and Palling v Corfield (1970) 123 CLR 52 (“Palling”)).

(c) The impugned s 33A MDA provisions also do not have the effect of directing the courts as to the manner and outcome of the exercise of their sentencing powers under the MDA (citing Liyanage, Chu Kheng Lim, Totani and Public Prosecutor v Taib bin Ibrahim (District Arrest Case No 19762 of 1998)).

[11] The Stated Question must be analysed against the backdrop of Singapore’s constitutional framework. The Singapore Constitution is based on the Westminster model of constitutional government (“the Westminster model”), under which the sovereign power of the State is distributed among three organs of state, viz, the Legislature, the Executive and the Judiciary. In the UK (where the Westminster model originated), the Legislature is the UK parliament (comprising the House of Commons and the House of Lords), the Executive is the UK government and the Judiciary consists of the UK judges. Likewise, under the Singapore Constitution, the sovereign power of Singapore is shared among the same trinity of constitutional organs, viz, the Legislature (comprising the President of Singapore and the Singapore parliament), the Executive (the Singapore government) and the Judiciary (the judges of the Supreme Court and the Subordinate Courts). The principle of separation of powers, whether conceived as a sharing or a division of sovereign power between these three organs of state, is therefore part of the basic structure of the Singapore Constitution. Article 38 of the Singapore Constitution vests the legislative power of Singapore in the Legislature consisting of the President and Parliament. Article 23(1) of the Singapore Constitution vests the executive power (or authority) of Singapore in the President, which power is “exercisable subject to the provisions of this Constitution by him or by the Cabinet or any Minister authorised by the Cabinet”. Article 93 of the Singapore Constitution vests the judicial power of Singapore in “a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force” (in this regard, see [16] below vis-à-vis the two different sources of judicial power set out in this Article).

[12] All Constitutions based on the Westminster model incorporate the principle of separation of powers as part of their constitutional structure in order to diffuse state power among different organs of state. It is for this reason that Lord Diplock stated in Hinds in relation to such Constitutions (at 212D–212E):

The same point is made in Thio Li-ann, A Treatise on Singapore Constitutional Law (Academy Publishing, 2012) (“Thio”) at paras 1.177–1.178.

[13] In Jeyaretnam Joshua Benjamin v Attorney-General [1987] SLR(R) 472, F A Chua J observed at [9] that the then equivalent of the Singapore Constitution (viz, the Constitution of the Republic of Singapore (1985 Rev Ed)) had “adopt[ed] and codifie[d] most, if not all, of the laws, customs, conventions and practices of the British constitutional and parliamentary system” (see also Thio at paras 5.001–5.005). However, there are nonetheless fundamental differences between the UK’s version of the Westminster model (“the UK’s Westminster model”) and Singapore’s version of the Westminster model (“Singapore’s Westminster model”). Two such differences will be mentioned below.

[14] The first fundamental difference is that the UK’s Westminster model is based on the supremacy of the UK parliament, under which the UK parliament is supreme, with the result that the UK courts have no power to declare an Act of the UK parliament unconstitutional and, hence, null and void. In contrast, Singapore’s Westminster model is based on the supremacy of the Singapore Constitution, with the result that the Singapore courts may declare an Act of the Singapore parliament invalid for inconsistency with the Singapore Constitution and, hence, null and void. Article 4 of the Singapore Constitution expresses this constitutional principle in the following manner:

[15] It should be noted that Art 4 of the Singapore Constitution states that any law inconsistent with “this Constitution”, as opposed to any law inconsistent with “any provision of this Constitution”, is void. The specific form of words used in Art 4 reinforces the principle that the Singapore parliament may not enact a law, and the Singapore government may not do an act, which is inconsistent with the principle of separation of powers to the extent to which that principle is embodied in the Singapore Constitution.

[16] The second fundamental difference between the UK’s Westminster model and Singapore’s Westminster model is that under the former, the judicial power of the UK vests in the UK courts either at common law or by statute. In contrast, under Singapore’s Westminster model, the judicial power of Singapore is vested (by Art 93 of the Singapore Constitution) in the Supreme Court and “in such subordinate courts as may be provided by any written law for the time being in force”. The Singapore Constitution thus provides for two different sources of judicial power. The first and much more significant source is the Singapore Constitution itself. The judicial power of the Supreme Court is a constitutional power derived directly from Art 93 and, hence, may be said to be co-equal in constitutional status with the legislative power and the executive power, subject only to the limitations expressed in the Singapore Constitution. The second source of judicial power, which applies to courts subordinate to the Supreme Court, is, in contrast, statutory in nature (see the words “any written law for the time being in force” in Art 93).

[17] Although Art 93 of the Singapore Constitution sets out two different sources of judicial power, what is important to note for present purposes is that the specific wording used in this Article has the effect of vesting the judicial power of Singapore exclusively in the Supreme Court and the Subordinate Courts, and not in any entity which is not a “court”, a “court” being, at common law, an entity with certain characteristics. The reference to “[c]ourt” in Art 93 would include any statutory body or tribunal having the characteristics of a court. All Commonwealth Constitutions appear to follow this practice of vesting the judicial power exclusively in the courts. Reference may be made to the decision of the Privy Council in Hinds, where ss 8 and 22 of Jamaica’s Gun Court Act 1974 (No 8 of 1974) were declared unconstitutional as being contrary to the principle of separation of powers implicit in the Jamaican Constitution, and therefore void, because they purported to transfer the power to determine the severity of the punishment to be inflicted on a specific class of offenders from the Jamaican judiciary to a review board. As the majority of the members of the review board were laymen and, thus, not qualified to exercise judicial power, the Privy Council held that the review board was not a “court” since it did not have the characteristics of a court. In the Singapore context, the exclusivity of the judicial power is safeguarded by the provisions in Part VIII of the Singapore Constitution, which are designed to secure the independence of our judiciary.

[18] The Stated Question which I have to answer in this Special Case is a narrow one. It is whether the impugned s 33A MDA provisions (which set out the conditions that, upon being satisfied, subject an offender to the enhanced minimum punishments prescribed in s 33A(1)) constitute an impermissible legislative or executive intrusion into the judicial power. As mentioned at [6] above, I answered this question in the negative. Before I give my reasons for coming to this conclusion, it is necessary that I first address a more fundamental question as to the meaning of “judicial power” and the scope and nature of this power vis-à-vis the punishment of offenders.

[19] The Singapore Constitution does not define “judicial power”. It assumes that this expression has a core meaning since the Singapore courts had been exercising judicial functions for about 150 years prior to the introduction of the Singapore Constitution. Case law would thus have identified certain hallmarks that, historically or jurisprudentially, would distinguish the judicial power from the legislative power and the executive power. Such a distinction is essential to separate one constitutional power from the other constitutional powers functionally. This is important as the principle of separation of powers requires that each constitutional organ should act within the limits of its own powers. This entails, in so far as the judicial branch is concerned, that the legislative and the executive branches of the State may not interfere with the exercise of the judicial power by the judicial branch. This total separation between the exercise of the judicial power on the one hand and the exercise of the legislative and the executive powers on the other hand is based on the rule of law (see Director of Public Prosecutions of Jamaica v Mollison [2003] 2 AC 411 at [13]).

[20] In the Australian High Court case of Huddart, Parker and Co Proprietary Limited v Moorehead (1909) 8 CLR 330 (“Huddart”), Griffith CJ provided what is now regarded as the classic definition of “judicial power” as follows (at 357):

[21] In The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Proprietary Limited (1970) 123 CLR 361 (“Tasmanian Breweries”), Kitto J endorsed and expanded upon Griffith CJ’s definition in Huddart, opining that (see Tasmanian Breweries at 374–375):

[22] In a separate judgment, Windeyer J observed (at 394 of Tasmanian Breweries) as follows:

[23] In Chu Kheng Lim, Brennan, Deane and Dawson JJ opined in their joint judgment (at 26–27):

[24] In Nicholas v The Queen (1998) 193 CLR 173, Gaudron J defined “judicial power” as follows (at [70]):

[25] The US Supreme Court has also provided a neat formulation, opining in Prentis v Atlantic Coast Line Co 211 US 210 (1908) that the holder of judicial power (at 226):

[26] In the UK, a formulation of the judicial function was offered by the Donoughmore Committee in “Report of the Committee on Ministers’ Powers” (Cmnd 4060, 1932) in section III, as follows:

[27] It can be seen from the above quotations that despite the definitional difficulties apropos the term “judicial power”, a reasonably clear judicial consensus as to the nature of the judicial function has emerged from case law. In essence, the judicial function is premised on the existence of a controversy either between a State and one or more of its subjects, or between two or more subjects of a State. The judicial function entails the courts making a finding on the facts as they stand, applying the relevant law to those facts and determining the rights and obligations of the parties concerned for the purposes of governing their relationship for the future. I note, however, that none of the above quotations touch on the question of whether the power to impose punishments on offenders is part of the judicial power. I now turn my attention to this question.

[28] In Chu Kheng Lim, McHugh J observed (at 67 of his minority judgment) that the classification of the exercise of a power as legislative, executive or judicial was incapable of an exhaustive or a more precise definition because it:

[29] Nevertheless, all common law courts, including the Singapore courts, have consistently accepted, or at least assumed, that the punishment of offenders is part of the judicial power. For example, in Dato’ Yap Peng, the Supreme Court of Malaysia held that the court (at 313D):

[30] Similarly, the Malaysian Court of Appeal in Kok Wah Kuan observed (at [11]):

[31] The above statement from Kok Wah Kuan seems to differentiate between passing a sentence and determining the measure of punishment to impose. It is not clear that there is a difference in substance between these two actions. In my view, they are both integral to the function of imposing punishment on an offender.

[32] In Chu Kheng Lim, Brennan, Deane and Dawson JJ stated in their joint judgment (at 27):

[33] In my view, in using the words “punishment of criminal guilt” in their joint judgment in Chu Kheng Lim, Brennan, Deane and Dawson JJ did not mean to suggest that the sentencing function of the courts extended beyond determining the measure of punishment to impose in each case before the courts. These words do not imply that the prescription of the kind and range of punishments to be imposed for a specific offence or a specific class of offences is part of or integral to the judicial power, which is distinct and separate from the legislative power. If a contrary interpretation of the words “punishment of criminal guilt” in Chu Kheng Lim is adopted (ie, if these words are interpreted as including the prescription of the kind and range of punishments as part of the judicial power), that would be inconsistent with the earlier decision of the Australian High Court in Palling, where it was held that the fixing or prescription of punishments for offences was not part of the judicial power.

[34] In Palling, the issue before the court was whether s 49(2) of the National Service Act 1951–1968 (Cth) (“the Australian National Service Act”) infringed the principle of separation of powers in providing that a person convicted of an offence of failing to respond to a national service notice was liable to pay a fine of between A$40 and A$200 and, on the request of the prosecutor, to serve a mandatory sentence of seven days’ imprisonment if he (the offender) refused to comply with the requirements of the national service scheme. In a unanimous judgment, Barwick CJ (with whom McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ agreed) opined (at 58–59):

[35] In a separate judgment, Walsh J said (at 68 of Palling):

[36] Indeed, legal scholarship has shown that there exists little historical and doctrinal support for the proposition that the sentencing power – ie, the discretion to determine the measure of punishment to impose on an offender – is essentially and/or exclusively a judicial power.

[37] In his study “Judicial Independence and Judicial Functions” in ch 2 of Sentencing, Judicial Discretion and Training (Sweet & Maxwell, 1992) (Colin Munro & Martin Wasik eds) (“Sentencing, Judicial Discretion and Training”), Colin Munro (“Munro”) pointed out that when Montesquieu expounded and espoused the principle of separation of powers in 1748 in his book L’Esprit des Lois, he did not consider the sentencing function to be a facet of the judicial power. Munro noted (at p 27 of Sentencing, Judicial Discretion and Training):

[38] Munro also examined other classic texts on the principle of separation of powers (such as Blackstone’s Commentaries and The Federalist papers) and noted that they likewise omitted any reference to the sentencing function as a facet of the judicial power (see Sentencing, Judicial Discretion and Training at p 27). The discretion to determine the measure of punishment to impose on an offender was thus not a birthright that accompanied the creation of the Judiciary as a separate organ of state. On the contrary, it was initially assumed that the role of the judge was simply, to paraphrase Montesquieu’s words, to pronounce the punishment that the law inflicted for the offence in question. This state of affairs is not surprising. At common law, all capital sentences were mandatory (see Ong Ah Chuan at [33], Sentencing, Judicial Discretion and Training at p 27 and D A Thomas, Principles of Sentencing (Heinemann, 2nd Ed, 1979) at p 6). In the UK, the first half of the 19th century was also characterised by minutely-detailed offences tailored to address a myriad of fact situations importing different degrees of culpability, coupled with legislatively-prescribed fixed or maximum and minimum sentences for each offence. This practice was imported into the criminal legislation of British colonies by British draftsmen (see, for example, the carefully-calibrated range of punishments enacted in the Indian Penal Code (Act No 45 of 1860) to cover the different degrees of culpability with which an offence may be committed).

[39] In Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 5th Ed, 2010) (“Ashworth”), it is noted (at p 52):

Summing up the development outlined in the above extract from Ashworth, Munro observed in Sentencing, Judicial Discretion and Training (at p 28) that “perhaps two generations of judges had become accustomed to think of sentencing policy as being entirely their concern”.

[40] It can be seen from the foregoing discussion that the judicial discretion to determine the sentence to impose on an offender is a relatively modern legislative development. It was the Legislature that, through statute, vested the courts with the discretionary power to punish offenders in accordance with the range of sentences prescribed by the Legislature. Historically, the sentencing power was neither inherent nor integral to the judicial function as the measure and range of punishments to be imposed for a specific offence or a specific class of offences was determined by legislation. This can be seen from, inter alia, Ex parte United States 242 US 27 (1916), where the US Supreme Court emphasised that it was “indisputable” that (at 42):

[41] Similarly, in the US Supreme Court decision of Mistretta v United States 488 US 361 (1989), Blackmun J held (at 364):

Likewise, in Mutart v Pratt, Warden of State Prison 51 Utah 246 (1917), the Supreme Court of Utah said (at 250):

[42] It is against this historical backdrop that Commonwealth courts have consistently rejected arguments that a reduction in the Judiciary’s sentencing discretion in itself constitutes an unconstitutional derogation from the core of the judicial function. They have repeatedly held that in the absence of any constitutional provisions to the contrary, the Legislature may prescribe whatever punishment it thinks fit and proper for the offences that it creates. The exercise of such power involves policy considerations which are “beyond the scope of judicial authority” (see Ex parte United States at 42 (quoted at [40] above)) or, indeed, judicial competence. Hence, the prescription of the death penalty, whether as a mandatory or a discretionary punishment, has never been held to be outside the legislative power, except in States where capital punishment is expressly prohibited by the Constitution. For example, the Privy Council has held the mandatory death penalty to be unconstitutional under the Constitutions of some West Indian States on the ground that the Constitutions concerned prohibit punishments which are cruel, unusual or inhumane (see the cases discussed in Yong Vui Kong). In the Singapore context, the Court of Appeal in Chew Seow Leng v Public Prosecutor [2005] SGCA 11 took it for granted that the prescription of punishments for offences (and of the mandatory death penalty in particular) was part of the legislative power when it said (per Lai Kew Chai J at [40]):

[43] The power to prescribe punishments is an integral part of the power to enact the offences for which the prescribed punishments are to apply. An offence serves no social purpose without punishment for its commission. In Hinds, Lord Diplock located the source of both powers (viz, the power to enact offences and the power to prescribe punishments for enacted offences) in s 20(1) of the Jamaican Constitution and said (at 225–227):

[44] Under the Singapore Constitution, the power to make laws is set out in Art 38 (which provides that the legislative power of Singapore shall be vested in the Legislature, which shall consist of the President and Parliament) and Art 58 (which provides that the power of the Legislature to make laws shall be exercised by Bills passed by Parliament and assented to by the President). That the Legislature has the power to prescribe punishments of any kind for a defined offence (whether the punishment be mandatory or discretionary, and whether it be fixed or within a prescribed range) is implicit in Art 9(1) of the Singapore Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law” [emphasis added]. As defined in Art 2(1) of the Singapore Constitution, the word “law” includes the common law, but since all offences in Singapore are statute-based (including criminal contempt of court, although our courts have unlimited power to punish any contemnor), Art 9 takes it for granted that Parliament may enact criminal laws and prescribe punishments that will affect the life or personal liberty of any person convicted by a court of a defined offence (subject only to the constitutional protections set out in Part IV of the Singapore Constitution and the principle of separation of powers to the extent to which it is embodied in the Singapore Constitution). Having regard to Art 9, there is no legal basis to argue that the death penalty, whether as a mandatory or a discretionary punishment, is unconstitutional (see Yong Vui Kong, where the Court of Appeal held that the mandatory death penalty did not violate the Singapore Constitution as there was no constitutional prohibition against the prescription of the mandatory death penalty for any offence).

[45] Since the power to prescribe punishments for offences is part of the legislative power and not the judicial power (as Commonwealth and US case law shows), it must follow that no written law of general application prescribing any kind of punishment for an offence, whether such punishment be mandatory or discretionary and whether it be fixed or within a prescribed range, can trespass onto the judicial power. On the contrary, it is the duty of the courts to inflict the legislatively-prescribed punishments on offenders, exercising such discretion as may have been given to them by the Legislature to select the punishments which they think appropriate. As Yong Pung How CJ said in Public Prosecutor v Tan Fook Sum [1999] 1 SLR(R) 1022 (“Tan Fook Sum”) at [14]:

[46] For the reasons stated above, there can be no question of the impugned s 33A MDA provisions being in violation of the principle of separation of powers. The impugned s 33A MDA provisions prescribe the conditions which, upon being satisfied, will result in the imposition of the mandated enhanced punishments set out in s 33A(1). These mandated enhanced punishments are a minimum sentence. Parliament has merely prescribed, via the impugned s 33A MDA provisions, the conditions (viz, previous convictions for a s 8(b) offence and/or a s 31(2) offence and previous DRC admissions) which are to be treated as aggravating factors for the purposes of subjecting offenders to the enhanced minimum punishments set out in s 33A(1). The rationale for introducing these enhanced punishments was explained by Mr Wong Kan Seng, the then Minister for Home Affairs, as follows when he moved the Misuse of Drugs (Amendment) Bill 1998 (Bill 17 of 1998) to introduce these punishments (see Singapore Parliamentary Debates, Official Report (1 June 1998) vol 69 at col 43):

[47] The impugned s 33A MDA provisions, in prescribing the conditions which, when satisfied, trigger the application of the enhanced minimum punishments in s 33A(1), do have the effect of directing the courts to inflict, at the very least, the mandatory minimum punishments when the conditions are satisfied. But, this form of legislation is not constitutionally objectionable because it is in substance no different from s 33 of the MDA read with the Second Schedule thereto, which (inter alia) prescribe the mandatory death penalty for certain drug trafficking offences involving controlled drugs of or exceeding a specified quantity. The only distinction is that s 33A(1) fixes the minimum punishment, whereas s 33 read with the Second Schedule to the MDA stipulates a fixed punishment. Further, the impugned s 33A MDA provisions do not have the effect of prescribing the punishment to be imposed on particular individuals or of directing the outcome of pending criminal proceedings, unlike the legislation in cases such as Kable and Liyanage, with which the Petitioner erroneously drew an analogy. The enhanced punishments under s 33A(1) apply generally to all offenders who fulfil the prescribed conditions set out in the impugned s 33A MDA provisions.

[48] The Petitioner also argued, in relation to s 33A(1)(a) of the MDA specifically, that this provision had the effect of treating or deeming a previous DRC admission as a previous conviction for the purposes of imposing the enhanced punishments in s 33A(1) on an offender, thereby changing a previous DRC admission into a previous conviction. In my view, this argument has no merit. Section 33A(1)(a) neither says that a previous DRC admission is a previous conviction nor achieves such an effect; it also does not treat a previous DRC admission as an antecedent, ie, as if it were a previous conviction. All that s 33A(1)(a) does is to treat a previous DRC admission as an aggravating factor in the same way that a previous conviction for a s 8(b) offence and/or a s 31(2) offence is treated as an aggravating factor under ss 33A(1)(b)–33A(1)(f). Section 33A(1)(a) does not convert a previous DRC admission into a previous conviction for any purpose whatsoever. In this regard, the fact that a DRC admission is an executive decision is irrelevant and does not amount to the Executive interfering with the sentencing function of the courts. As the High Court of Australia held in Totani (at [71] per French CJ):

[49] In so far as s 33A(1)(a) of the MDA directs that previous DRC admissions are to be treated as an aggravating factor in determining whether the mandatory minimum punishments in s 33A(1) are applicable, Parliament is doing no more than what the courts could have done if s 33A(1)(a) had not provided for this particular aggravating factor. Consistent with the sentencing policy of the courts, there would be nothing to prevent a court from treating a previous DRC admission as an aggravating factor for the purposes of punishing an offender. Indeed, in my view, the courts would be fully justified in doing so for the reason which I stated during the hearing of this Special Case, namely: a DRC admission is designed to rehabilitate a drug addict for his personal benefit and in the larger societal interest. Before an order for admission to a DRC is made, the fact that the individual concerned is a drug addict would have been conclusively determined by scientific evidence (see s 34 of the MDA). It is inaccurate to characterise a DRC admission as inflicting punishment on an individual who would otherwise not have suffered any punishment because, as a drug addict, the individual concerned could have been convicted of illegal consumption of a controlled drug had he been charged. In being subject to a DRC admission instead of a criminal charge for drug consumption, the individual concerned has also been spared a criminal record. In these circumstances, a court would be fully justified in treating (pursuant to s 33A(1)(a)) the fact that an individual is a drug addict who has already had two DRC admissions as an aggravating factor in meting out the appropriate punishment for his subsequent s 8(b) offence or s 31(2) offence. In this respect, I reiterate that although the courts have long assumed that it is part of the judicial function to impose punishments, the imposition of punishments is always subject to the power of the Legislature to prescribe the applicable punishments. In other words, the courts’ sentencing function must be exercised in accordance with the kinds and range of punishments prescribed by the Legislature. The sentencing power of our courts is derived from legislation, although our courts have the discretion to decide, within the range of legislatively-prescribed punishments, what the appropriate sentence in a particular case would be (see Tan Fook Sum at [14]). Hence, the legislative prescription of factors for our courts to take into account in sentencing offenders cannot and does not intrude into the judicial power.

[50] In this connection, it is interesting to note the views of the Constitutional Court of South Africa on this issue apropos the South African Constitution. In Dodo, the South African Constitutional Court stated (at [22]–[25]):

[51] Although the legislative prescription of factors for the courts to take into account in sentencing offenders does not intrude into the judicial power, there have nonetheless been cases where Commonwealth courts have held that the legislative provisions in question gave the Executive powers which trespassed onto the sentencing function of the courts and were thus unconstitutional. These cases may be divided into three classes:

(a) first, cases involving legislation which enabled the Executive to actually select the sentence to be imposed in a particular case after the accused person was convicted by a court of law;

(b) second, cases involving legislation which enabled the Executive to make administrative decisions which were directly related to the charges brought against a particular accused person, and which had an impact on the actual sentence eventually imposed by a court of law; and

(c) third, cases involving legislation which enabled the Executive to make administrative decisions which were not directly related to any charges brought against a particular accused person at the time of those decisions, but which had an impact on the actual sentence eventually imposed by a court of law pursuant to legislative directions that the Executive’s administrative decisions were a condition which limited or eliminated the court’s sentencing discretion.

[52] Deaton, Hinds and Palling fall within the first category of cases. In Deaton, for instance, the impugned legislation empowered the Revenue Commissioners of Ireland to elect which of two penalties prescribed in the relevant provisions was to be imposed by the court. The Irish Supreme Court held that this was a violation of the principle of separation of powers because it effectively left the choice of alternative penalties to the Executive when that choice should have been left to the courts (see Deaton at 182–183).

[53] Muktar Ali, which was an appeal to the Privy Council from a decision of the Supreme Court of Mauritius, falls within the second category of cases. In Muktar Ali, the impugned legislation gave the Director of Public Prosecutions of Mauritius (“the Mauritian DPP”) the discretion to prosecute an individual for drug trafficking either: (a) in an Intermediate Court or a District Court; or (b) in the Supreme Court before a judge sitting without a jury. The Mauritian DPP’s choice of the latter option led to the imposition of the mandatory death penalty on the offender when he was convicted. The Privy Council affirmed that the prosecutorial discretion was wide enough to enable the Mauritian DPP to decide whether a person should be charged with one offence rather than another. However, the Privy Council struck down the impugned legislation because it effectively allowed the Mauritian DPP, by his selection of the court of trial, to select the sentence which would be imposed should the accused be convicted. The Privy Council noted (at 104F–104H):

[54] Muktar Ali is different from the ordinary case in Singapore (in the context of the offence of drug trafficking) where the Public Prosecutor elects to charge an accused with a non-capital drug trafficking charge (eg, by reducing the quantity of drugs stated in the charge such that the amount of controlled drugs involved falls below the threshold quantity for which the mandatory death penalty is prescribed (see Ramalingam Ravinthran v Attorney-General [2012] 2 SLR 49 (“Ramalingam”) at [65], Yong Vui Kong v Public Prosecutor [2012] 2 SLR 872 (“Yong Vui Kong (Prosecutorial Discretion)” at [17] and Quek Hock Lai v Public Prosecutor [2012] 2 SLR 1012 at [30]–[31]). The exercise of the prosecutorial discretion in such cases would not intrude into the judicial power. The question would instead simply be whether the exercise of the prosecutorial discretion breached Art 12 of the Singapore Constitution because it was tainted by bias or was based on irrelevant considerations (see Yong Vui Kong (Prosecutorial Discretion) at [34]–[39] and Ramalingam at [69]–[71]). In Muktar Ali, the prosecutorial decision was based on legislation under which a prosecution for trafficking in exactly the same quantity of drugs would result in two very different punishments – one capital and the other, non-capital – depending on which court the Prosecution chose to prosecute the accused in. The legislation in question did not stipulate any threshold quantity of drugs for the purposes of determining whether or not a prosecution should take place in a court which, upon convicting the accused, had to impose the death penalty.

[55] Totani falls within the third category of cases. In Totani, the impugned legislation (referred to in the quotation below as “the SOCC Act”) compelled the court to impose control orders on individuals upon a finding that they were members of organisations declared by the Executive to be a risk to public safety and order. The control orders were to be made notwithstanding that the members of those organisations were not convicted of any offence by a court of law. The High Court of Australia held (by a majority of 6:1) that the impugned legislation was unconstitutional. The court said (per French CJ):

[56] In other words, Totani was a case in which the Australian legislature disguised what was in substance an executive decision as a judicial decision. At the hearing before me, the amicus curiae referred to this case as an example of the application of the integrity principle (which assesses whether a certain executive function is inconsistent with the integrity of the judicial function) in determining whether the principle of separation of powers has been violated.

[57] In the present case, the scheme of enhanced punishments in s 33A(1) does not fall within any one of the above-mentioned categories. Unlike the impugned legislation in Deaton, Hinds and Palling, s 33A(1)(a) of the MDA does not empower the CNB Director to directly or indirectly select the sentence to be imposed on an individual who, after having had two previous DRC admissions, is subsequently convicted of either a s 8(b) offence or a s 31(2) offence; rather, it is the trial court which determines the length of the custodial sentence and the number of strokes of the cane to impose, subject to the mandatory minimum punishments set out in s 33A(1). Section 33A(1)(a) also does not empower any member of the Executive to choose the court in which to try an offender so as to obtain a particular sentencing result on the facts, unlike the legislation in issue in Muktar Ali. The closest analogy to the present case is Totani. However, unlike the scheme in Totani, the scheme in s 33A does not involve the imposition of a sentence absent a judicial finding of guilt. Furthermore, unlike the scheme in Totani, the Executive’s exercise of discretion in ordering a DRC admission under s 34 of the MDA is not directed at achieving a particular sentencing outcome, but, rather, is directed at the limited, legislatively-prescribed objective of rehabilitation. The fact that the Legislature has prescribed that previous DRC admissions constitute an aggravating factor under s 33A(1)(a) for the purposes of punishing an offender for his subsequent and separate s 8(b) offence or s 31(2) offence has no bearing on the CNB Director’s exercise of discretion under s 34 of the MDA.

[58] As mentioned at [6] above, the Petitioner also argued that s 33A(1)(a) of the MDA violated the right to equal protection under Art 12 of the Singapore Constitution on the ground that it subjected an individual with two prior DRC admissions to the same treatment as an individual with two prior court convictions. In my view, this argument has no merit. It turns Art 12 on its head because, in fact, the Petitioner has enjoyed the benefit of two previous rehabilitation programmes when the same drug consumption conduct which he engaged in could well have attracted criminal prosecution. Upholding the Petitioner’s argument on Art 12 would effectively compel the State to prosecute drug addicts like the Petitioner without giving them a chance to rehabilitate themselves and become useful and productive members of the community. In Yong Vui Kong, an analogous argument was rejected by the Court of Appeal. In this regard, the following statement of Lord Diplock in Ong Ah Chuan (at [37]), although made in a different context, is apt:

[59] With regard to the Petitioner’s arguments on Art 9 of the Singapore Constitution, it was not clear to me what the precise thrust of his arguments was. The gist of his arguments appeared to be that the minimum mandatory sentence of five years’ imprisonment and three strokes of the cane prescribed under ss 33A(1)(i) and 33A(1)(ii) respectively was manifestly excessive, disproportionate and arbitrary, and, hence, not “in accordance with law” for the purposes of Art 9(1) of the Singapore Constitution. In essence, the Petitioner’s arguments were based on the principle of proportionality, which received support from the Constitutional Court of South Africa in Dodo (at [26]) as follows:

[60] As far as the position in Singapore is concerned, the prescription of punishments for offences falls under the legislative power and not the judicial power (see [43]–[45] above). The principle of proportionality, as a principle of law (as opposed to a principle of good government), has no application to the legislative power to prescribe punishments. If it were applicable, then all mandatory fixed, maximum or minimum punishments would be unconstitutional as they can never be proportionate to the culpability of the offender in each and every case. That said, although the principle of proportionality is inapplicable to the legislative power to prescribe punishments, the courts should have regard to this principle when sentencing offenders and should observe it as a general sentencing principle unless there are other policy considerations which override it, such as the need to impose a deterrent sentence. Whether “the legislature ought not to oblige the judiciary to impose a punishment which is wholly lacking in proportionality to the crime” (see Dodo at [26]) is a matter of legislative policy and not of judicial power. The courts must impose the legislatively-prescribed sentence on an offender even if it offends the principle of proportionality. In this connection, the following extra-curial observation of Lord Bingham of Cornhill in “The Courts and the Constitution” (1996) 7 KCLJ 12 is apt (at p 25):

[61] For the above reasons, I held that the impugned s 33A MDA provisions did not violate Art 9 of the Singapore Constitution.

[62] The judicial function is (and has always been) essentially that of making a finding on facts and applying the law to the relevant facts to reach a decision in accordance with law. Ashworth and Munro’s study in Sentencing, Judicial Discretion and Training show that historically and doctrinally, the judicial function did not include the sentencing function. Munro’s analysis of the essential characteristics of the judicial function provides no support for the proposition that sentencing is an inherently judicial task (see Sentencing, Judicial Discretion and Training at pp 27–28). The courts have the power to punish only if and when the Legislature has vested them with the power to do so. It is only in those circumstances and to that extent that the courts are free to take into account the relevant policy considerations, gleaned from the express or implied intentions of the Legislature, in order to impose a punishment which fits the offence and/or the offender, or which promotes some other social objective that is consistent with the policy of the particular legislation in question. As a result of the long-standing legislative practice of delegating to the courts the discretion to impose punishments on offenders, the belief has arisen that sentencing is an “essential” function of the courts. However, it remains the case that in determining the appropriate sentence to impose on an offender, judges are not finding facts or applying legal rules, but are instead engaged in a different kind of exercise altogether (see Sentencing, Judicial Discretion and Training at p 26). In his lecture “The Discretion of the Judge” [1990] Denning Law Journal 27, Lord Bingham described the sentencing function thus:

[63] If, as Lord Bingham observed, the imposition of criminal penalties involves a discretionary determination of what is fair and just in a particular case, that function need not be performed exclusively by judges, but can be performed by non-judges. Legalised punishment of offenders is merely society’s counter-measure or remedy to check or curb criminal acts in order to maintain law and order. Whether other persons (eg, penologists, psychologists, medical practitioners or social workers) may perform the task of sentencing equally well is likely to be controversial. It may be that the long-established practice of the Legislature in prescribing punishments for the courts to inflict on offenders shows that judges are ultimately still the persons best qualified to undertake the task of sentencing offenders.

[64] Based on Munro’s and Ashworth’s theses on the sentencing power of the courts, no punishment prescribed by the legislative branch can intrude into the sentencing function of the courts (since that function is itself derived from a delegated legislative power). In other words, the principle of separation of powers has no application to the sentencing function because, in constitutional theory, it is a function delegated by the legislative branch to the judicial branch. The sentencing power is not inherent to the judicial power (except, perhaps, where it is ancillary to a particular judicial power, eg, to punish for contempt of court). Instead, the courts’ power to punish is derived from legislation. The fact that judges have exercised the power to sentence offenders for such a long time reflects more the functional efficiency of this constitutional arrangement, rather than the principle of separation of powers.