Public Prosecutor v Adnan bin Kadir

Chao Hick Tin JA (delivering the judgment of the court):

[1] This criminal reference arose from a decision of the High Court in Adnan bin Kadir v Public Prosecutor [2012] SGHC 196 (“the Judgment”). In the light of the Judgment, the Public Prosecutor (“the PP”) referred the following question of law of public interest (“the Question”) to this court pursuant to s 397(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”):

[2] The Respondent, Adnan bin Kadir, pleaded guilty in the District Court to importing 0.01g of diamorphine (a Class A controlled drug), which is an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Section 7 states:

[3] In mitigation, the Respondent asserted, inter alia, that he had imported the drugs for his own consumption. The Prosecution disputed this assertion but argued that it did not, in any event, qualify the Respondent’s guilty plea. The senior district judge agreed and sentenced the Respondent to the mandatory minimum punishment of 5 years’ imprisonment and 5 strokes of the cane (as prescribed under s 33 read with the Second Schedule of the MDA). This was on account of the Respondent’s lack of antecedents, his early plea of guilt, and the relatively small amount of drugs involved. With his consent, a second charge of importing methamphetamine was taken into consideration for the purpose of sentencing.

[4] The Respondent then appealed against the sentence imposed. To support his appeal, he filed a mitigation plea in which he reiterated that he had brought the drugs into Singapore for his own consumption. The High Court held that s 7 required the Prosecution to prove, beyond a reasonable doubt, that the accused imported the drugs concerned for the purpose of trafficking. Since this was not proven by the Prosecution, the High Court set aside the Respondent’s conviction and remitted the case to the District Court for a new trial. The effect of the Judgment is that for there to be an offence under s 7, the Prosecution must also prove, in addition to the act of importing, that the drugs were imported for purposes of trafficking.

[5] The answer to the Question hinges on how the word “import” in s 7 should be interpreted. The starting point for construing the word “import” is the Interpretation Act (Cap 1, 2002 Rev Ed) (“the IA”). Section 2(1) of the IA states:

[6] Thus, s 2(1) of the IA gives the word “import” its plain ordinary meaning, viz, the bringing of an object into the country. This definition does not require that the object must be brought into Singapore for any particular purpose before it would qualify as an act of importation. Therefore, if this is the correct interpretation of the term “import”, then the answer to the Question would be “No”.

[7] Section 2(1) states that the definitions in the IA shall apply unless the written law expressly provides otherwise or unless “there is something in the subject or context inconsistent with such construction”. Since the MDA does not expressly assign a different meaning to the word “import”, the key question is whether the meaning given by the IA is inconsistent with the subject or context of the MDA.

[8] What does “subject or context” mean? The word “context” is defined by the learned author of Bennion on Statutory Interpretation (LexisNexis, 5 Ed, 2008) as follows (at p 588):

This broad definition is consistent with s 9A(2) of the IA, which allows courts to consider any extrinsic material that would assist in ascertaining the meaning of a statutory provision. We would therefore adopt this definition in relation to the word “context” in s 2(1) of the IA. As for the word “subject”, it is clear that the MDA is a law enacted by Parliament as a demonstration of Singapore’s determination (and in fulfilment of her international obligations) to suppress the illicit importation into and exportation from Singapore of controlled drugs and the illicit trafficking of the same. In the words of the Privy Council in Ong Ah Chuan and another v PP [1979-1980] SLR(R) 710 (“Ong Ah Chuan”) at [38], it is a law “to prevent the growth of drug addiction in Singapore by stamping out the illicit drug trade”.

[9] The question then is whether there is anything in the MDA, or the relevant extrinsic materials, that is inconsistent with the meaning of “import” given by the IA, thereby suggesting that Parliament had in mind a different meaning when it used the word “import” in s 7 of the MDA. In deciding this question, three things must be borne in mind.

[10] First, s 2 of the Dangerous Drugs Act (Cap 151, 1970 Rev Ed) (“the DDA”), which was one of the predecessors of the MDA, defined “import” as “to bring, or to cause to be brought into Singapore by land, air or water, otherwise than in transit”. However, when the DDA was repealed and the MDA enacted in its place in 1973, Parliament chose to remove this definition without inserting a new one in its place. This suggests that Parliament had consciously decided to let the term be defined in accordance with s 2(1) of the IA. The High Court agreed with this view (at [18] of the Judgment).

[11] Second, Parliament has seen it fit to expressly provide in s 5(2) of the MDA that a person commits the offence of trafficking in a drug if he has that drug in his possession “for the purpose of trafficking”:

As the Deputy Public Prosecutors (“the DPPs”) have submitted, if Parliament had intended that for importation to be an offence under s 7 there must also be an intent to traffic, it could easily have made this clear by including words such as “for the purpose of trafficking” in s 7, as was done in s 5(2) above. However, that was not done.

[12] Third, the word “import” appears in no fewer than 72 statutes, and in a significant number of these, Parliament gave “import” a custom definition that is different from that in the IA. In some statutes, “import” was expressly defined to exclude the bringing of goods into Singapore for a particular purpose. For example, in the Sale of Drugs Act (Cap 282, 1985 Rev Ed), “import” is defined in s 2 as follows:

We would also refer to the Trade Marks Act (Cap 332, 2005 Rev Ed), where the word “import” is not defined in the statute but the offence-creating section specifies that importation is only an offence when done for a particular purpose:

Thus, where Parliament intended for a different definition of import to apply, or where it wished to restrict the scope of the offence of importation, it has made this clear in the statutes concerned. The question before us is whether the MDA is an exception to this practice.

[13] With this background in mind, we now turn to consider the Question.

[14] A substantial part of the Judgment was devoted to discussing the Single Convention on Narcotic Drugs 1961 (“the Single Convention”), which Singapore acceded to on 15 March 1973. After a careful analysis, the High Court concluded that the Single Convention “was not intended to oblige Party States to criminalise the mere physical transfer of drugs from one Party State to another Party State” and therefore does not require him to interpret s 7 of the MDA to that effect (at [27]).

[15] But even assuming that this conclusion is correct, that is not the end of the question. As noted in the Judgment (at [30]), Article 39 of the Single Convention expressly provides that Party States are not precluded from adopting stricter laws than those required by it. The question therefore is whether Parliament had intended to adopt stricter drug laws than as required by the Single Convention. If that was indeed Parliament’s intention then it would not be appropriate to rely upon the Single Convention to curtail or limit the scope of the MDA.

[16] Our courts have repeatedly and consistently applied the IA’s definition of “import” to s 7 of the MDA.

[17] In PP v Ko Mun Cheung and another [1990] 1 SLR(R) 226 (“Ko Mun Cheung (HC)”), the accused persons were charged under s 7 of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) (which is identical to s 7 of the present MDA) for importing diamorphine into Singapore. In their defence, they argued that they had intended to carry the drugs to Amsterdam; they only broke their journey in Singapore for convenience and not with a view to disposing of the drug in Singapore or delivering it to any person in Singapore. The High Court, then consisting of two judges for the trial of capital cases, rejected this argument and explained as follows:

The convicts’ appeal was dismissed by the Court of Criminal Appeal in Ko Mun Cheung and another v PP [1992] 1 SLR(R) 887 (“Ko Mun Cheung (CA)”). The court held as follows:

[18] In PP v Ng Kwok Chun and another [1992] 1 SLR(R) 159, the issue was whether the accused persons were guilty of importing drugs under s 7 by bringing the drugs into the transit lounge of Changi Airport. Defence counsel argued that s 7 would only be violated if the drugs had crossed the customs area; there was no importation into Singapore if the drugs remained in the transit area. The High Court rejected this argument, stating (at [23]):

On appeal, the Court of Criminal Appeal in Ng Kwok Chun and another v PP [1992] 3 SLR(R) 256 (“Ng Kwok Chun (CA)”) affirmed the High Court judgment and held that the definition of “import” in the IA applied to the MDA:

[19] The argument adopted by defence counsel in Ng Kwok Chun was repeated in Tse Po Chung Nathan and another v PP [1993] 1 SLR(R) 308 (“Nathan Tse”). Once again, it was rejected by the Court of Criminal Appeal, which held as follows (at [18]):

[20] More recently, in Tan Kiam Peng v PP [2008] 1 SLR(R) 1 (“Tan Kiam Peng”), this court applied the IA’s definition of “import” to s 7 of the MDA, albeit without further comment (at [56]–[57]).

[21] Ko Mun Cheung (CA), Ng Kwok Chun (CA) and Nathan Tse were discussed in the Judgment. Essentially, the High Court distinguished the three cases on the basis that the issue of personal consumption did not arise and was not specifically addressed in those cases (at [34], [37] and [38]). Instead, the courts were addressing the argument that the offence of importation under s 7 of the MDA was not established where the accused who brought the drugs into Singapore was merely passing through with the ultimate aim of distributing the drugs in another country.

[22] While we agree that the issue of personal consumption did not arise in those cases, the clear ratio of those cases (as we have reproduced above) was that the word “import” in s 7 of the MDA should bear the plain meaning given by s 2(1) of the IA. It is because “import” is defined in this way that it did not matter whether the drugs were only brought into Singapore in transit – the offence of importation was constituted the moment the drugs were brought physically into Singapore, and the fact that the drugs never left the restricted area of the transit lounge at the airport was immaterial. In our view, if this ratio is correct, then it must also apply to the question of whether the drugs have to be brought into Singapore for the purposes of trafficking in order for s 7 to bite. We cannot apply the IA’s definition of “import” in transit cases but jettison it in cases where drugs are imported for the purpose of personal consumption. As a matter of logic, if it is immaterial to the offence of importation under s 7 that the drugs were brought into Singapore only temporarily with a view to bringing them out to another country, then it also should not matter that the drugs were brought into Singapore for personal consumption. For the purposes of s 7, the critical act is the bringing into Singapore of the drugs; the further intention of the person who brought the drugs in Singapore is wholly immaterial and cannot alter the fact that the person has imported the drugs into Singapore.

[23] Of course, the Court of Appeal is not bound by its previous decisions: Practice Statement (Judicial Precedent) of the Court of Appeal [1994] 2 SLR 689, and we acknowledge that it may well be desirable to reconsider whether the IA’s definition of “import” should continue to apply to the MDA in the light of new fact situations. As this court noted in Lee Chez Kee v PP [2008] 3 SLR(R) 447 (at [122]):

[24] In Tan Kheng Chun Ray v PP [2012] 2 SLR 437 (“Ray Tan”), the accused had pleaded guilty to, inter alia, two charges under s 7 of the MDA involving the importation of 14.99g of diamorphine and 1.12g of methamphetamine. The issue was whether the one-transaction rule applied so that the sentences for both charges should run concurrently, given that the diamorphine was imported for the purpose of trafficking while the methamphetamine was imported for the accused’s own consumption. This court held that it did, stating (at [17]):

[25] The High Court distinguished this case (at [41] of the Judgment) on the basis that the defence of personal consumption was not raised and addressed by the court in Ray Tan. It further noted that although the court had said that an accused’s motive for committing an offence is a relevant sentencing consideration, it did not say that motive is irrelevant for other purposes (by which the High Court presumably meant the purpose of conviction). With respect, we have some difficulty with this distinction: the issue of whether motive is a relevant factor in sentencing would not even have arisen if the offence itself is not established. In other words, if the importation of drugs for the purpose of personal consumption is not an offence under s 7, then there would be no need to even consider whether an accused who imported drugs for this purpose would merit a lesser sentence. Therefore, although the court did not explicitly address the defence of personal consumption in Ray Tan, it had at least implicitly assumed that it was not necessary for the Prosecution to establish that the importation of the drugs must be for the purposes of trafficking before there could be an offence under s 7. However, we acknowledge that the court in Ray Tan did not expressly consider whether an intent to traffic was a necessary element of an offence under s 7.

[26] The defence of personal consumption was directly addressed in PP v Majid bin Abdul Rahman [2007] SGDC 222 (“Majid”). In that case, the accused was charged with importing 1.23 grams of diamorphine. He argued that he was not guilty of importation because the drugs were meant for his own consumption and not for delivery to anyone else. However, the district judge rejected this argument, stating (at [4]–[6]):

[27] In the Judgment (at [45]), the High Court characterised the district judge’s decision in Majid as follows:

In our view, however, the main basis for the district judge’s decision was that Ko Mun Cheung (HC) had ruled that the definition of “import” in the IA applies to s 7 of the MDA. As we have noted at [6] above, if the IA’s definition applies, then the accused’s purpose for bringing drugs into Singapore is irrelevant to the question of whether he had imported drugs within the meaning of s 7. Thus, Ko Mun Cheung (HC) (together with cases like Ng Kwok Chun (CA) and Nathan Tse) had indeed decided – implicitly – that trafficking is not an element of the offence of importing under s 7. Thus personal consumption cannot be a defence to the offence of importation, and we respectfully have to disagree with the High Court that the district judge’s “second reason” in Majid was erroneous.

[28] We turn next to consider the relevance of the cases on drug trafficking.

[29] In deciding that s 7 refers only to importation for the purpose of trafficking, the High Court drew support from the reasoning in Ong Ah Chuan, Lau Chi Sing v PP [1988] 2 SLR(R) 451 (“Lau Chi Sing”) and Ng Yang Sek v PP [1997] 2 SLR(R) 816 (“Ng Yang Sek”), three cases that have interpreted the word “traffic” in the MDA.

[30] The word “traffic” is defined in s 2 of the MDA as follows:

[31] Given that s 2 of the MDA defines traffic to include acts such as “transport” which might not be done for the purpose of trafficking (eg a person might be transporting drugs back home for his own consumption), the question was whether the acts listed in s 2 must be done for the purpose of trafficking in order to constitute the offence of trafficking under s 5 of the MDA. In Ong Ah Chuan, the Privy Council held that the answer was “Yes”. It reasoned as follows (at [10]):

[32] The Privy Council’s decision was adopted by this court in Lau Chi Sing, where the accused was charged with drug trafficking by transporting drugs from Geylang to Changi Airport for the purpose of distributing them in Amsterdam. Relying on Ong Ah Chuan, he argued that he was not guilty of trafficking because he did not transport drugs with the intent of distributing them in Singapore. The court affirmed the correctness of Ong Ah Chuan but rejected the accused’s reliance on it (at [8]–[9]):

[33] The Privy Council’s reasoning in Ong Ah Chuan was also applied in Ng Yang Sek. In that case, the accused, a practitioner of Chinese medicine, was found to possess a total of 17,405.1g of opium containing 165.59g of morphine and was charged with trafficking. The High Court found that the accused had intended to use the opium to produce medicinal plasters and not to supply it to drug addicts. Nonetheless, the High Court held that the accused’s intent to sell, give or administer the plasters to potential patients fell within the meaning of “trafficking” and sentenced him to death. On appeal, this court substituted the accused’s conviction for trafficking with that for possession, explaining its decision as follows (at [35]–[37] and [41]):

[34] The above extracts show that the courts had three reasons for deciding that the acts listed in the s 2 definition of “traffic” (in particular the word “transport”) had to be performed for the purpose of trafficking to sustain a trafficking charge:

(a) The word “transport” in s 2 is sandwiched between other verbs such as “sell, give, administer” and “send, deliver or distribute” that imply a transfer of possession between two parties. Applying the maxim of noscitur a sociis, the word “transport” must mean transport for the purpose of distribution to someone else.

(b) The verbs in s 2 are used to define the word “traffic”, which in its ordinary and natural meaning involves dealings between two or more parties. To define those verbs broadly to include cases where there is no intent to give the drugs to another person would be repugnant to the ordinary meaning of “traffic”.

(c) The offence of trafficking is meant to target the mischief of supplying or distributing drugs to others as part of the drug trade. Persons who are merely transporting drugs between two locations with no intent of distributing them to others, or persons who do not distribute the drugs in a manner associated with drug addiction (eg the distribution of medicinal plasters containing opium) do not fall within the mischief targeted by the offence.

[35] It can immediately be seen that the first two reasons do not apply in the present case. Unlike “transport” in s 2, the word “import” in s 7 is not surrounded by any words that would cast on it a different complexion. Further, the plain and ordinary meaning of “import” is (as defined in s 2 of the IA) to bring something into a country. The word “import” is not used to define any other word – nor is any other word used to define it – that would suggest a departure from this ordinary meaning.

[36] As for the third reason, it is applicable here only if the offence of importation were directed solely at the mischief of drug trafficking. But if it were, then there would be no reason to constitute importation as a separate offence; after all, those who import drugs for the purpose of trafficking would always be concurrently guilty of trafficking and can be charged under s 5.

[37] In our opinion, too much reliance was placed by the High Court on the views expressed in Ong Ah Chuan when the issue under consideration in Ong Ah Chuan and that in the present case are distinct. In the former, the issue related to the word “traffic” as defined in the MDA and, in particular, the word “transport” in that definition. In the present case, the issue concerns the word “import” as defined in the IA. If drugs are not intended to be transferred from one person to another, but are intended to be for personal consumption, there can be no question of any trafficking – one cannot traffic with oneself. There has to be two parties. Thus the Privy Council in Ong Ah Chuan held that “transport” should be construed accordingly. On the other hand, “import” is a simple English word whose sense is not in doubt, ie the bringing of a thing into the country. It does not suggest the involvement of another party.

[38] In this regard, it is instructive to consider a case where the word “import” was given a more restrictive meaning than that prescribed in the IA. In Trade Facilities Pte Ltd and others v PP [1995] 2 SLR(R) 7 (“Trade Facilities”), the respondents were charged with selling and importing counterfeit Hennessy XO cognac contrary to s 73 of the Trade Marks Act (Cap 332, 1992 Rev Ed) (“the 1992 TMA”) (s 73 of the 1992 TMA has since been amended and is now s 49 of the Trade Marks Act (Cap 332, 2005 Rev Ed)). Section 73 of the 1992 TMA stated:

The question arose as to how the word “imports” in that provision should be interpreted. Chief Justice Yong Pung How (“Yong CJ”) noted in obiter that the meaning of “imports” in s 73 was not necessarily as wide as that given in s 2(1) of the IA – it referred to the act of bringing goods into Singapore for the purpose of trade or manufacture. The relevant paragraphs are reproduced below:

[39] As Yong CJ pointed out, the word “imports” in s 73 of the 1992 TMA appeared as part of the phrase “imports, sells or exposes or has in his possession for sale or for any purpose of trade or manufacture”, and it was plain from the text of s 73 alone that the section was meant to target those who imported counterfeit goods for the purpose of sale, trade or manufacture. Consequently, Yong CJ was able to conclude that the meaning of the word “imports” in the context of s 73 was narrower than that provided in the IA. But as we have already observed (at [35] above), unlike the 1992 TMA, there is nothing in the MDA to suggest that the word “import” in s 7 should be given a special or narrower meaning.

[40] We have also derived assistance from several Indian cases in which the word “import” was interpreted. The word “import” is not defined in the Indian equivalent of our IA, the General Clauses Act (Act No 10 of 1897) (India), and the Supreme Court of India has had multiple opportunities to determine the meaning of that term as used in various statutes.

[41] In Organon (India) Ltd v Collector of Excise (1995) Supp (1) SCC 53 (“Organon”), the issue was whether s 5 of the Opium Act (Act No 1 of 1878) (India) (“the Opium Act”) allowed the State of Madhya Pradesh to levy and collect duty as a condition for permitting the export of poppy husks from Madhya Pradesh when the said export was not an export from one State to another State within India but an export across the customs frontier of India to another country. The court’s discussion of that issue is not pertinent for present purposes; what is relevant is its view that the definition of “import” and “export” in the Opium Act does not require an element of sale (at [9] and [20]):

[42] In Gramophone Co of India Ltd v Birendra Bahadur Pandey (1984) 2 SCC 534 (“Gramophone”), the Supreme Court had to decide how “import” should be interpreted for the purposes of copyright legislation. Under s 51(b)(iv) of the Copyright Act (Act No 14 of 1957) (India), copyright in a work was deemed to be infringed where a person “imports (except for the private and domestic use of the importer) into India” any infringing copies. The issue arose as to whether a person, by bringing infringing copies through India into Nepal, had “imported” infringing copies into India. The Supreme Court held that the word “import” means “bringing into India from outside India”, and that it is not limited to importation for commerce only, but also includes importation for transit across the country (at [27], [29] and [32]):

[43] The decision in Gramophone may usefully be contrasted with the case of Central India Spinning and Weaving and Manufacturing Company Ltd v Municipal Committee, Wardha [1958] SCR 1102 (“Central India Spinning”). Section 66(1)(o) of the C.P. and Berar Municipalities Act 1922 (Act No 2 of 1922) (India) empowered the municipalities to impose “a terminal tax on goods or animals imported into or exported from the limits of a municipality”. The Supreme Court held that phrase “terminal tax” indicated that the bringing of goods into a municipality in transit to another municipality did not count as an “import” within the meaning of s 66(1)(o) (at 1108, 1111, 1113, 1116 and 1121):

[44] These cases provide an excellent illustration of the circumstances that courts have taken into account when interpreting the word “import”. First, where the word has been expressly defined by the legislature, courts would be slow to read into it other requirements that do not appear in the definition (Organon). Second, other words in the statute might suggest that Parliament had a more restricted meaning of “import” in mind (Central India Spinning). Conversely, where there is no material to support the view that Parliament had a different meaning of “import” in mind, courts have been unwilling to depart from its plain meaning of bringing something into the country (Gramophone).

[45] We now turn to consider whether there is anything in the parliamentary speeches on the MDA to indicate that Parliament had intended for a different meaning of “import” to apply.

[46] The predecessor of the MDA was the Misuse of Drugs Act 1973 (Act 5 of 1973) (“the 1973 MDA”). The objects behind the enactment of the 1973 MDA were explained in Parliament by the then Minister for Home Affairs and Education, Mr Chua Sian Chin (“Mr Chua”), as follows (Singapore Parliamentary Debates, Official Report (16 February 1973) vol 32 at cols 414–418):

[47] The 1973 MDA was amended in 1975 via the Misuse of Drugs (Amendment) Act (Act 49 of 1975) to enhance the penalties for various offences. Most significant was the introduction of the mandatory death sentence for those found guilty of manufacturing, importing or trafficking in large quantities of specified drugs. Mr Chua justified the amendments on the following basis (Singapore Parliamentary Debates, Official Report (20 November 1975) vol 34 at cols 1381–1382):

[48] On the basis of these ministerial speeches, the High Court ruled that the IA’s definition of “import” (which would preclude the defence of personal consumption) is incompatible with the legislative purpose of the MDA 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 Judgment at [50]).

[49] Likewise, counsel for the Respondent, Mr Abraham Vergis (“Mr Vergis”), has referred extensively to ministerial speeches on the MDA to make the point that Parliament has consistently equated drug importation with drug trafficking. For example, Mr Vergis cites the following comments made by Deputy Prime Minister and Minister for Home Affairs, Mr Teo Chee Hean (“DPM Teo”), on the 2012 amendments to the MDA (Singapore Parliamentary Debates, Official Report (9 July 2012) vol 89):

Another example is taken from the second reading of the Misuse of Drugs (Amendment) Bill (Bill 27 of 2012), where DPM Teo said (Singapore Parliamentary Debates, Official Report (12 November 2012) vol 89):

[50] While we acknowledge that these ministerial statements show that the main concern of Parliament in imposing deterrent sentences was to combat drug trafficking, the question that remains is still whether they necessarily show that Parliament had intended s 7 of the MDA to apply only to persons who import drugs for the purposes of trafficking. Having carefully considered the relevant speeches, it is our view that no such inference can really be drawn. The reason why Mr Chua and DPM Teo appear to have equated drug importation with drug trafficking is because they were discussing the imposition of the mandatory death penalty for the trafficking and importation of large quantities of drugs. Under the MDA, individuals who deal with such large quantities of drugs are presumed to be trafficking in them, and it is therefore understandable for the ministers to have used “trafficking” as shorthand to refer to both trafficking and importation. In our judgment, their speeches do not amount to a clear expression of Parliament’s intention to ascribe a special meaning to the word “import” in s 7 of the MDA that is different from that in s 2(1) of the IA.

[51] Furthermore, while it is true that Parliament intended to draw a distinction between drug traffickers and drug addicts, it does not necessarily follow that those who import drugs for the purpose of personal consumption should not be convicted under s 7. The distinction could still be maintained by convicting such offenders under s 7 but imposing more lenient sentences on them than that imposed on offenders who import larger quantities of drugs for the purpose of trafficking (subject to the mandatory minimum sentences, which we will turn to shortly). There is no inherent inconsistency between the IA’s definition of “import” and the legislative intent behind the MDA as expressed in Parliament.

[52] The following table sets out the penalties for the possession, importation and trafficking of Class A drugs, Class B drugs, Class C drugs and diamorphine (see the Second Schedule of the MDA):

[53] It can be seen that the penalties for drug importation are generally harsher than those for drug trafficking. In the view of the High Court, this is a reason to read s 7 narrowly to mean the bringing of drugs into Singapore for the purpose of trafficking. It reasoned as follows (at [53]–[54]):

[54] While we agree with this rationale for penalising cross-border trafficking more severely (viz, because it increases the stock of drugs available for trafficking in Singapore), we do not see why the same rationale should not apply where drugs are imported for personal consumption. This is because there is a difference between a person who obtains drugs from within Singapore for his own consumption and a person who imports drugs from overseas for the same purpose – in the former case, the stock of drugs within Singapore available for trafficking is reduced, while in the latter, the stock of drugs is unchanged and remains available for the use of other drug addicts. There is thus a rational basis for prescribing heavier penalties for those who import drugs for their own consumption vis-à-vis those who obtain such drugs from within Singapore for their own consumption and thereby deplete the local stock of drugs.

[55] Furthermore, the DPPs have suggested other reasons (in our view rightly) for the heavier penalties on drug importation. As they point out in their written submissions:

[56] It is also possible that the legislature considers the prospect of fresh drugs infiltrating Singapore’s borders to be such a great menace that it justifies the blanket imposition of tough penalties to deter drug importation, regardless of the purpose for which they are imported. Evidence of this attitude can be found in the following statement by Mr Chua while moving the Misuse of Drugs Bill 1972 (Singapore Parliamentary Debates, Official Report (16 February 1973) vol 32 at col 415):

During the debate over the 1975 amendments to the MDA, Mr Chua again emphasised Singapore’s vulnerability to cross-border drug flows (Singapore Parliamentary Debates, Official Report (20 November 1975) vol 34 at cols 1381–1382):

[57] Consequently, there are plausible reasons to impose harsher penalties on the act of importation even where the drugs are brought in for purposes other than trafficking, and it would not be correct to assume that Parliament regarded drug importation as merely an aggravated form of trafficking.

[58] Mr Vergis emphasised that a conviction for drug importation – regardless of the amount imported – carries a mandatory minimum sentence of 5 years’ imprisonment and 5 strokes of the cane (for Class A drugs), as compared to the sentencing benchmark of about 12 months for the possession of small quantities of a Class A drug (eg 0.01g of diamorphine, the amount that the Respondent was charged with importing). He submitted that Parliament could not have intended to visit such severe punishments on drug consumers who bring trace amounts of drugs into Singapore for their own consumption. To buttress his submission, Mr Vergis referred us to three foreign cases where the courts had to interpret legislation governing the exportation, importation and possession of drugs. While the courts in all three cases construed the provisions expansively (ie in a manner that was less favourable to the accused), they appeared to be influenced by the fact that the offences in question did not carry a minimum penalty.

[59] In Attorney General v Lau Chi-sing [1987] HKLR 703, the Hong Kong Court of Appeal had to decide whether a person taking drugs out of Hong Kong for his own consumption was guilty of trafficking in drugs, an offence under s 4 of the Dangerous Drugs Ordinance (Cap 134) (HK) (“the DDO”). Section 2 of the DDO defined “trafficking” to include exporting a dangerous drug from Hong Kong, while “export” was defined as “to take or cause to be taken out of Hong Kong or any other country, as the case may be, by land, air or water”. The court held by a majority that the answer was in the affirmative. Silke JA explained the court’s decision as follows (at 707–708):

[60] In United States of America v Robert Alan Probert 737 F Supp 1010 (ED Mich, 1989) (“Robert Probert”), the issue was whether Title 21 United States Code Section (“21 USC §”) 952(a), which makes it unlawful to import drugs into the United States, covers the situation where an individual imports drugs for his personal use. 21 USC § 951(a)(1) defines the term “import” as “any bringing in or introduction of such article into any area (whether or not such bringing in or introduction constitutes an importation within the meaning of the tariff laws of the United States)”. The defendant contended that 21 USC § 952(a) was meant to prohibit importation for a commercial purpose only. The court disagreed, holding as follows (at 1007):

[61] Finally, we were referred to Warner v Metropolitan Police Commissioner [1969] 2 AC 256. The issue there was whether the accused had violated s 1(1) of the Drugs (Prevention of Misuse) Act 1964 (c 64) (UK) – which made it unlawful for a person to “have in his possession” a prohibited substance – where he was in possession of a parcel and knew that it contained something, but did not know that it contained prohibited drugs. The House of Lords held that he had. However, Lord Pearce noted as follows (at 306):

[62] We agree that the presence of a minimum penalty is relevant to deciding how a penal provision should be construed – where the provision could reasonably be read in two or more different ways, the fact that it carries a harsh minimum penalty might persuade a court that Parliament had intended for the narrower construction to prevail. However, where the disputed word or phrase is not only plain and unambiguous in itself, but has further been expressly assigned its plain meaning by an interpretation section or statute (as is the case with the word “import” in s 7 of the MDA), it becomes more difficult for the court to conclude that Parliament did not intend for those words to be given their plain meaning. As Rajah JA observed in PP v Low Kok Heng [2007] 4 SLR(R) 183 (“Low Kok Heng”) at [52], “it is crucial that statutory provisions are not construed, in the name of a purposive approach, in a manner that goes against all possible and reasonable interpretation of the express literal wording of the provision”.

[63] Consequently, the evidence of contrary legislative intent will have to be very compelling in order for a court to depart from the ordinary meaning of such a provision. In the present case, although we accept that it might appear harsh to apply the mandatory minimum sentence of 5 years and 5 strokes to someone who brings small quantities of heroin into Singapore for his own consumption, it is not, in our judgment, so inexplicable or unreasonable as to compel the conclusion that Parliament must have intended s 7 of the MDA to apply only to those who import drugs for the purpose of trafficking. It must be noted that Parliament appears to have considered the question of mandatory minimum sentences very carefully. As DPM Teo noted during the debate on the 2012 amendments to the MDA (Singapore Parliamentary Debates, Official Report (14 November 2012) vol 89):

[64] We do not think that the court should rewrite the law just because the sentence imposed on the Respondent on account of the regime of minimum sentence may appear harsh on the present facts (as the quantum of the drugs imported was so minute). How the word “import” in s 7 should be interpreted should not depend on the weight of the drugs that happen to be involved in a given case. It would be seen from the statement of DPM Teo above that Parliament had carefully calibrated the sentences it prescribed for the various offences, including the regime of minimum sentences. Parliament having deliberately adopted the definition of “import” set out in the IA would have appreciated that the minimum sentence would be applied even where the importation was in relation to a minute quantity of drugs. There is nothing in the parliamentary debates which suggests that Parliament had regarded the act of importing drugs into Singapore for personal consumption as being less pernicious than trafficking in Singapore. What is clear from all the statements made by the ministers in Parliament over the years is that we have toughened our stand in our fight against the scourge of drugs. We would reiterate (see [11] above) that if it was Parliament’s intention for trafficking to be a necessary element of the offence of importation under s 7, it could easily have so provided (see also the views of US court in Robert Probert quoted in [60] above).

[65] Mr Vergis submitted that, applying the strict construction rule, any ambiguity in s 7 of the MDA should be resolved in favour of the accused. This is especially so in the light of the fact that s 7 carries extremely harsh penalties.

[66] In Low Kok Heng, Rajah JA explained that the strict construction rule should only be used as a last resort where all other interpretive tools (in particular, the purposive approach) have failed to resolve the ambiguity in a provision (at [38] and [57]):

[67] In our view, there is simply no scope for the strict construction rule to operate in this case. As we have said, the meaning of s 7 of the MDA is plain and unambiguous on its face. Moreover, the word “import” is expressly defined in s 2(1) of the IA, and we have decided that there is no basis for departing from this definition. Consequently, neither the purposive approach nor the strict construction rule would allow us to construe s 7 as requiring the importation of drugs to be for the purpose of trafficking.

[68] In the alternative, Mr Vergis submitted that even if the intent to traffic cannot be read as an element of the offence of drug importation, we should at least hold that it is a good defence to a s 7 charge for the accused to prove that the drugs were imported for a purpose other than trafficking. Here, it is apposite to refer to s 107 of the Evidence Act (Cap 97, 1997 Rev Ed):

[69] In our judgment, although it appears to be an attractive compromise to hold that proof that drugs were not imported for the purpose of trafficking is a defence to a s 7 charge, to do so would amount to judicial legislation, since no such proviso or exception can be found in the MDA. Any reform in this regard will have to come from Parliament.

[70] For the above reasons, we hold that the Question should be answered in the negative, viz, s 7 of the MDA does not require the Prosecution to prove that the accused imported the controlled drug for the purpose of trafficking in order to secure a conviction under that section.

[72] Finally, we would like to thank the DPPs and counsel for the Respondent (who took on this case pro bono) for their able assistance in this case.