Court of Appeal · Decided 4 March 2015

Yong Vui Kong v Public Prosecutor

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[2015] SGCA 11Case no. Criminal Appeal No 11 of 2013

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Sundaresh Menon CJ (delivering the judgment of the court):
Introduction
[1] This is an appeal against the decision of the High Court judge (“the Judge”) in Criminal Motion 56 of 2013 to re-sentence the Appellant to life imprisonment and 15 strokes of the cane for drug trafficking. This was the sentence that the Appellant had contended for before the Judge. The Appellant now argues that the sentence of caning violates Arts 9(1) and 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). This was the central issue raised in this appeal.
Background facts
[2] The Appellant was charged with trafficking in 47.27g of diamorphine, which is an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the MDA”). The offence was committed on 12 June 2007. He was convicted after a trial and sentenced to death by the Judge on 14 November 2008.
[3] The Appellant’s sentence of death was held in abeyance as he brought a series of legal challenges against:
(a) the constitutionality of the mandatory death penalty imposed by s 33 of the MDA read with the Second Schedule thereto (see Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489 (“Yong Vui Kong (MDP)”));
(b) the integrity of the clemency process set out in Art 22P of the Constitution (see Yong Vui Kong v Attorney-General [2011] 2 SLR 1189); and
(c) the Public Prosecutor’s decision to prosecute him for a capital offence under s 5(1)(a) of the MDA while applying for (and obtaining) a discontinuance not amounting to an acquittal of various charges under the MDA against the Appellant’s alleged principal and supplier (see Yong Vui Kong v Public Prosecutor [2012] 2 SLR 872).
[4] In the meantime, while these various proceedings were working their way through the courts, the Government had begun a review of the mandatory death penalty and as a result, all executions were suspended from July 2011 pending completion of the review. The review culminated in the passage of various pieces of legislation including the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) (“the MDA Amendment Act”) on 14 November 2012, which came into effect on 1 January 2013. Under s 33B of the MDA as amended (“the amended MDA”), a person convicted of a drug trafficking offence punishable with death could instead be sentenced to:
(a) imprisonment for life and caning of not less than 15 strokes if he only played the role of courier and the Public Prosecutor certifies that he had substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities (“the substantive assistance limb”) (s 33B(1)(a) read with s 33B(2)); or
(b) imprisonment for life if he only played the role of courier and was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in relation to the offence (s 33B(1)(b) read with s 33B(3)).
[5] By virtue of the transitional provisions set out in s 27(6) of the MDA Amendment Act, the Appellant was entitled to apply to the High Court for re-sentencing under s 33B of the amended MDA. He did so on 26 September 2013 via Criminal Motion 56 of 2013, relying on the substantive assistance limb in s 33B(2). On 12 November 2013, the Public Prosecutor issued a certificate of substantive assistance in respect of the Appellant. On 14 November 2013, the Judge held that the Appellant had satisfied the requirements of the amended MDA and imposed on him the mandatory minimum sentence of life imprisonment and 15 strokes of the cane.
Grounds of appeal
[6] The Appellant now appeals against his sentence of caning on several grounds. A number of those grounds were subsequently withdrawn, and those that remain are as follows:
(a) Caning constitutes a form of torture that is prohibited by a peremptory norm of international law (or jus cogens) as well the common law. Thus, the statutory authorisation of mandatory caning is in breach of Art 9(1) of the Constitution. Even if caning as a form of corporal punishment in general does not necessarily constitute torture, the punishment as it is implemented in Singapore by the Commissioner of Prisons or by his officers is so severe and painful that it amounts to torture.
(b) The imposition of mandatory caning on a prisoner who is already sentenced to life imprisonment is irrational, illogical and does not serve any lawful purpose because there is no evidence of its value as a deterrent. It therefore lacks the essential features of law within the meaning of Art 9(1) and is unconstitutional.
(c) Caning in Singapore is administered in a discriminatory manner because it is not applied to men above the age of 50 or to women. Thus, the statutory authorisation of caning violates Art 12(1) of the Constitution.
Correspondence and submissions after the hearing
[7] At the hearing of the appeal, we granted the Appellant leave to tender further written submissions to respond to certain additional authorities tendered by the Respondent regarding the definition of torture with leave to the Respondent to reply. The Appellant subsequently wrote to the Respondent and the Singapore Prison Service (“Prisons”) asking for a copy of any rules and directions made under s 329(1) and (2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). Those subsections state as follows:
[8] The Respondent initially rejected the Appellant’s request (and the Attorney-General evidently advised Prisons to do the same) on the basis that the rules and directions were irrelevant to the further submissions that the Appellant had been given leave to tender. The Appellant however submitted that the rules and directions were relevant to the issue of whether caning pursuant to a judicial sentence is implemented in a manner that constitutes torture, and asked that the Respondent be required to produce the rules and directions. In reply, the Respondent stated that no rules had been made to date under s 329(1) and (2) of the CPC, although Prisons has internal Standing Orders and Standard Operating Procedures (collectively, “Orders”) which supplement the statutory provisions governing the execution of caning. The Respondent contended that these Orders should not be produced as they pertain to operational matters with security implications.
[9] We invited the Respondent to consider whether he would furnish a redacted version of the Orders that excluded any portions that he thought posed a security risk. We indicated that we would otherwise proceed to decide the appeal on the basis that there were no such Orders. After consulting the Ministry of Home Affairs (“the MHA”), the Respondent replied that both he and the MHA were of the view that it would not be in the public interest to disclose the Orders. We therefore invited the Appellant to make submissions on the effect of there being no such Orders and also granted the Respondent leave to reply. Both parties have since tendered further submissions addressing us on this issue, which we will consider when we come to the issue of whether caning constitutes torture.
Issues arising in this appeal
[10] The issues arising in this appeal are as follows:
(a) Does the imposition of a sentence of caning on the Appellant violate Art 9(1) of the Constitution on the basis that it amounts to torture (“the Torture Issue”)?
(b) Does the imposition of a sentence of caning on the Appellant violate Art 9(1) of the Constitution on the basis that it is irrational, illogical and does not serve any lawful purpose (“the Irrationality Issue”)?
(c) Does the statutory authorisation of caning violate Art 12(1) of the Constitution on the ground that it impermissibly discriminates against men aged 50 and below (“the Equal Protection Issue”)?
The Torture Issue
[11] The Appellant contends that caning constitutes torture. Although no express prohibition of torture exists in the Constitution or in our domestic statutes, he submits that this prohibition is imported into domestic law from international law. At the hearing of the appeal, he further submitted that such a prohibition exists at common law or as an unenumerated right in the Constitution. He contended on this basis that caning violates Art 9(1) of the Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”.
[12] In the light of the Appellant’s arguments, the following sub-issues arise for our consideration:
(a) Does caning constitute a deprivation of “life or personal liberty” within the meaning of Art 9(1)?
(b) Does the law of Singapore prohibit torture?
(c) Does caning constitute torture?
Does caning constitute a deprivation of “life or personal liberty”?
[13] In order for Art 9(1) to be engaged at all, caning must involve a deprivation of “life or personal liberty”. The Appellant submits that caning does involve a deprivation of personal liberty because it is administered on a prisoner while he is physically restrained. On the other hand, the Respondent contends that the words “deprivation of … personal liberty” in Art 9(1) refer only to unlawful incarceration or detention. The physical restraint of a prisoner while he is being caned does not count as a deprivation of personal liberty because that is not the primary object of caning but is an incidental aspect of its administration.
[14] Before we consider the construction of these words “life or personal liberty”, it is helpful to note two key features of Art 9(1) which are apparent on a plain reading. First, it prohibits the State from unlawfully depriving an individual of his life or personal liberty, but does not impose any duty on the State to take affirmative measures to facilitate or promote a person’s enjoyment of his life and personal liberty. Second, Art 9(1) contemplates that the State may deprive an individual of, or intrude upon, rights that are within the ambit of “life and liberty” but only in accordance with law. Thus, the provision seeks to ensure that any such deprivations or intrusions are authorised by and comply with “law”. The word “law” includes legislative enactments: Art 2(1) of the Constitution. Therefore, even assuming that a particular right falls within the ambit of the words “life and personal liberty”, that does not preclude Parliament from depriving a person of that right by way of a validly enacted law. In order to challenge such an enactment, a litigant must not only show that it deprives or threatens to deprive him of his right to life and personal liberty; he must go further and establish that the enactment is void and/or inconsistent with another law that takes precedence over it.
[15] In sum, the object and purpose of Art 9(1) is to ensure that the Government acts in accordance with valid laws when depriving a person of his life or personal liberty. In these circumstances, it might be thought surprising if Art 9(1) protected a person only from unlawful execution, incarceration or detention. Such a parsimonious reading would mean that there is no constitutional safeguard against other forms of criminal punishment that entail improper interference with a person’s bodily integrity or personal liberty.
[16] In order to determine the correct interpretation of Art 9(1), it is necessary to go back in history and consider how its predecessor provisions were understood. Art 9(1) of the Constitution is a precise reproduction of Art 5(1) of the 1957 Constitution of the Federation of Malaya (“the Malayan Constitution”), which in turn was modelled on Art 21 of the 1950 Constitution of India (“the Indian Constitution”). Art 21 of the Indian Constitution in turn was based on the Due Process Clause in the Fifth and Fourteenth Amendments of the US Constitution, which themselves had their roots in cl 39 of the Magna Carta which King John was forced by his barons to sign in 1215 (Ryan C Williams, “The One and Only Substantive Due Process Clause” (2010) 120 Yale LJ 408 at p 428). Clause 39 stated (English translation provided by the British Library at http://www.bl.uk/magna-carta/articles/magna-carta-english-translation (last accessed on 10 February 2015)):
[17] It is evident that cl 39 of the Magna Carta encompassed more than just the right not to be unlawfully incarcerated; it also protected a person from the unlawful seizure of his property and the unlawful use of force against him. This scope was necessary because the chief grievance that cl 39 sought to redress was King John’s practice of “attacking his barons with forces of mercenaries, seizing their persons, their families and property, and otherwise ill-treating them, without first convicting them of some offence in his curia” (C H McIlwain, “Due Process of Law in Magna Carta” (1914) 14 Columbia L Rev 27 at p 41).
[18] Did the ambit of the protection embodied in cl 39 of the Magna Carta change when it was adapted into the constitutions of other countries? Certainly there is no evidence that the framers of the Due Process Clauses in the US Constitution, by distilling the acts listed in cl 39 of the Magna Carta into the phrase “[the deprivation of] life, liberty, or property”, intended to narrow the scope of protection conferred. In this regard, they were probably influenced by the ideas of their contemporary, Sir William Blackstone (“Blackstone”), who wrote in his Commentaries on the Laws of England, Book I (Clarendon Press, 1765) at pp 125–134:
[19] In the case of Art 21 of the Indian Constitution, however, the drafters evinced a clear intention to depart from the US Due Process Clauses in three respects. First, the word “property” was excised and dealt with under a separate article (Art 31). The fear, apparently, was that subjecting the deprivation of property to the requirements of due process might result in the invalidation of beneficial socio-economic legislation (Vijayashri Sripati, “Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back To See Ahead (1950-2000)” (1998) 14 Am U Intl L Rev 413 at p 435). Second, the word “liberty” was qualified by the word “personal”. The reason given by the Drafting Committee was that otherwise the word “liberty” might be construed very widely to include the freedoms already covered under Art 19 of the Indian Constitution (which deals with, among other things, the freedom of speech and assembly) (H M Seervai, Constitutional Law of India vol 1 (Tripathi, 3rd Ed, 1983) at p 692). Third, the phrase “without due process of law” was changed to “except according to procedure established by law” in order to avoid the expansive interpretation given to that phrase by the US Supreme Court, which saw it infused with substantive content (Ibid at pp 692–693).
[20] As for the Malayan Constitution, that was based on the recommendations of the constitutional commission chaired by Lord Reid (“the Reid Commission”). In its report, the Reid Commission dealt with the issue of fundamental rights rather briefly, as it appeared to regard those rights as being clear and settled (Report of the Federation of Malaya Constitutional Commission 1957 (11 February 1957) at pp 72 and 95):
We note that the Reid Commission referred only to unlawful arrest and detention and did not mention other forms of deprivation of life and liberty. However, in the absence of clear words signifying an intention to depart from the traditional understanding of “life and personal liberty”, little weight can be placed on this omission. Indeed, the Reid Commission did not refer to the right to life either; yet it is beyond dispute that this right is also protected by Art 5(1) of the Malayan Constitution.
[21] Finally, we turn to the adoption of Art 9(1) in our Constitution. Again, there is no evidence of any intention to adopt a narrower meaning of the phrase “life and personal liberty”, although the right to property was expressly excluded to avoid litigation over the adequacy of compensation for compulsory land acquisitions (Singapore Parliamentary Debates, Official Report (22 December 1965) vol 24 at col 435 (Lee Kuan Yew, Prime Minister)):
[22] The lineage of Art 9(1) makes the following propositions clear:
(a) to the extent specific rights are dealt with elsewhere, for instance the prohibition of forced slavery and labour in Art 10, or of banishment and curtailment of freedom of movement in Art 13, these would not be included within the ambit of the protection conferred by Art 9;
(b) to the extent potential rights were considered and excluded, for instance the right to property, these also would not be included in Art 9;
(c) beyond this, Art 9 does not protect only against arbitrary execution or incarceration. It also prohibits the unlawful use of force against a person, including by way of amputations, mutilations, assaults, beatings, woundings, etc. Such acts would result in a deprivation of “life”, according to Blackstone’s definition (see [18] above).
[23] There is no evidence in the historical record to indicate that this understanding of “life” had been altered by the time Art 9(1) was adopted into the Constitution of Singapore. For the avoidance of doubt, we do state that the foregoing analysis does not run contrary to the views expressed by this court in relation to the ambit of Art 9, albeit in a different context, in Lim Meng Suang and another v Attorney General and another appeal [2015] 1 SLR 26 (“Lim Meng Suang”) at [44]–[49]. In our judgment, therefore, Art 9(1) is engaged by the execution (or proposed execution) of a sentence of caning on the Appellant, and in order to pass constitutional muster it has to be “in accordance with law”. It is to that issue which we now turn.
Does the law of Singapore prohibit torture?
[24] The Appellant argues that the prohibition of torture may be imported into domestic law from three sources: (a) international law, (b) the common law, and (c) unenumerated constitutional rights. We will consider each in turn.
International law
[25] The Appellant rests his argument founded on international law on two bases. First, he submits that the prohibition against torture should be read into the Constitution because it has acquired the status of jus cogens in international law. Second, he submits that Singapore’s ratification of the Convention on the Rights of Persons with Disabilities (“CRPD”), which prohibits torture in Art 15(1), allows this Court to read such a prohibition into the Constitution.
(1) Jus cogens
[26] Peremptory norms in international law are norms that are “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”: Art 53 of the Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331 (“the VCLT”). A norm need not be accepted and recognised by all the states in the world to achieve peremptory status; it is sufficient that a very large majority do so (Summary records of the plenary meetings and of the meetings of the Committee of the Whole, United Nations Conference on the Law of Treaties, First Session, Vienna, 26 March–24 May 1968, Official Records, p 472, para 12 (Mr Yasseen); Malcolm N Shaw, International Law (Cambridge University Press, 7th Ed, 2014) (“Shaw”) at p 90).
[27] There is strong evidence that the prohibition against torture is now a peremptory norm of international law. The vast majority of states in the world accept that torture is contrary to international law – there are now 155 state parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984), 1465 UNTS 85 (“the CAT”). Although Singapore has not ratified the CAT, ministers speaking in Parliament have endorsed the view that torture is wrong and that no one should be subjected to it: Singapore Parliamentary Debates, Official Report (29 July 1987) vol 49 at cols 1491–1492 (Prof S Jayakumar, Minister for Home Affairs); Singapore Parliamentary Debates, Official Report (21 December 1966) vol 25 at col 1053 (Mr E W Barker, Minister for Law and National Development). Numerous international courts and tribunals have also held that the prohibition of torture is a peremptory norm: see, eg, Prosecutor v Anto Furundžija IT-95-17/1-T (10 December 1998) (“Furundžija”) at [153]; Siderman de Blake v Argentina 965 F 2d 699 (9th Cir, 1992) at 717; Regina v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147 at 198; Al-Adsani v The United Kingdom [2001] ECHR 761 at [61]. Significantly, the Respondent does not deny the peremptory nature of the international law prohibition against torture.
[28] The issue here is whether peremptory norms of international law are automatically incorporated into the law of Singapore and take precedence over domestic legislation in the event there is an inconsistency between the two. In our judgment, the key to this issue lies in whether a “monist” or “dualist” view of international law and domestic (or municipal) law is adopted. Under the monist school of thought, international law and domestic law form part of a single legal structure, with the various national systems of law being derived by way of delegation from the international legal system. Since international law is part of the same legal order as domestic law, it can be regarded as incorporated into domestic law: Oppenheim’s International Law vol I (Robert Jennings & Arthur Watts eds) (Longman, 9th Ed, 1992) (“Oppenheim”) at p 54. In contrast, the dualist view regards international law and domestic law as separate legal systems, so that international law would not form part of domestic law unless expressly adopted by the domestic law of the State: Oppenheim at p 53.
[29] It is clear from our jurisprudence that Singapore, like most other common law jurisdictions, subscribes to the dualist school of thought. In Public Prosecutor v Tan Cheng Yew and another appeal [2013] 1 SLR 1095 (“Tan Cheng Yew”), the High Court said (at [56]):
In our judgment, this is reflective of the law in Singapore and note that the same view has been taken recently by this court in Lim Meng Suang at [188] and also in ABU v Comptroller of Income Tax [2015] SGCA 4 at [46]–[47]. It is true that the court in Tan Cheng Yew was considering the domestic legal status of an international treaty (a point which we will turn to shortly) and not customary international law (“CIL”). Where CIL is concerned, this court held in Yong Vui Kong (MDP) that it would not form part of the law of Singapore “until and unless it has been applied as or definitively declared to be part of domestic law by a domestic court” (at [91]). We have also previously noted that any rule of CIL “must be clearly and firmly established before its adoption by the courts”: Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103 (“Nguyen Tuong Van (CA)”) at [88]. A rule of CIL therefore would not require an act of legislation in order that it be transposed into domestic law but can be recognised and declared to be part of the domestic law by the courts.
[30] We pause to observe that there are two competing doctrines regarding the application of CIL in the domestic sphere. The first is the “transformation” doctrine, which states that rules of CIL do not have effect domestically until specifically adopted by the legislature or by domestic courts. The second is the “incorporation” doctrine, which states that rules of CIL are automatically incorporated into domestic law as long as they are not inconsistent with domestic legislation. The difference between the two doctrines was articulated by Lord Denning MR in Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 at 553 as follows:
[31] In the UK, the incorporation doctrine has become the dominant approach: Shaw at p 101. In Australia, however, it appears that the transformation approach holds sway: Nulyarimma v Thompson [1999] FCA 1192 at [23]. It appears to us that the transformation doctrine is more logically consistent with a dualist approach to international law: if international law and domestic law occupy separate domains, then it follows that a rule of international law must be expressly adopted by domestic courts before it can become part of domestic law. This court’s statements in Yong Vui Kong (MDP) and Nguyen Tuong Van (CA) (which we have quoted at [29] above) also support the transformation doctrine.
[32] But we would not need to settle this issue definitively if the distinction between the two doctrines were immaterial for present purposes on the basis that under either of these doctrines, valid domestic statutes would in any case prevail in the event of any inconsistency with a rule of CIL. The locus classicus for this principle is Chung Chi Cheung v The King [1939] AC 160, where Lord Atkin stated (at 167–168):
This was affirmed by this court in Nguyen Tuong Van (CA) at [94].
[33] The reason for this is obvious: a court operating in a parliamentary democracy is bound to implement the will of Parliament as embodied in domestic legislation, insofar as such legislation is not incompatible with the constitution. As Lebel J, who delivered the majority decision of the Supreme Court of Canada in R v Hape [2007] 2 SCR 292, explained in the context of the adoption (or incorporation) doctrine (at [39]):
[34] Thus far we have considered the domestic legal status of a normal rule of CIL and the position there is that on any view, it must yield to contrary domestic legislation. But does this analysis change where the rule in question has acquired the status of a peremptory norm? Some academics have indeed suggested that a domestic court may rely on peremptory norms to overturn parliamentary legislation (see, eg, CL Lim, “The Constitution and the Reception of Customary International Law: Nguyen Tuong Van v Public Prosecutor” [2005] SJLS 218 at p 231; Thio Li-Ann, “Reading Rights Rightly: The UDHR and its Creeping Influence on the Development of Singapore Public Law” [2008] SJLS 264 at pp 289–290; Chen Siyuan, “The Relationship Between International Law and Domestic Law: Yong Vui Kong v PP [2010] 3 SLR 489” [2011] 23 SAcLJ 350 at para 9; Yap Po Jen, “Constitutionalising Capital Crimes: Judicial Virtue or ‘Originalism’ Sin?” [2011] SJLS 281 (“Constitutionalising Capital Crimes”) at pp 287–288). This is said to rest on the fact that such norms represent fundamental international values from which no state derogation is allowed (Constitutionalising Capital Crimes at 288).
[35] We respectfully disagree. The fact that peremptory norms admit of no derogation in the international sphere where relations between states are concerned, says nothing about what the position should be in the domestic sphere. Under the dualist theory of international law, there is no reason why the elevation of a particular norm to the highest status under one legal system (international law) should automatically cause it to acquire the same status and take precedence over the laws that exist in another legal system (domestic law). The two systems remain separate and a court operating in the domestic system is obliged to apply domestic legislation in the event of an irreconcilable conflict between it and international law. It may well be that the consequence of this is that a state that has enacted a law that is contrary to an applicable rule of international law is in breach of its international obligations. That alone does not invalidate the domestic legislation in question. In the converse situation, if an international tribunal were considering an issue of international law, a state would not be able to rely on its domestic legislation to justify its actions under international law or to excuse a breach of its international obligations. This position is explained in Oppenheim as follows (at p 84):
[36] This analysis is buttressed by the nature and purpose of the concept of jus cogens, which was to create “a hierarchy of international legal norms” and to prevent states from agreeing by treaty to “override those higher norms which were essential to the life of the international community and were deeply rooted in the conscience of mankind” (Summary records of the plenary meetings and of the meetings of the Committee of the Whole, United Nations Conference on the Law of Treaties, First Session, Vienna, 26 March–24 May 1968, Official Records, p 296, para 23). No attempt was made during the drafting of the VCLT to extend the notion of jus cogens beyond the invalidation of incompatible treaties (Erika de Wet, “The Prohibition of Torture as an International Norm of Jus Cogens and its Implications for National and Customary Law” (2004) 15 EJIL 97 at p 99). Thus, the concept at its inception was meant to govern the international relations between states, and there was no suggestion that it would also have some special or extraordinary effect at the intra-state level.
[37] Confronted with these analytical difficulties, the Appellant submitted that we should depart from the dualist model and adopt the monist view of international law instead. But no justification was advanced for such a radical departure. In any event, monism simply states that international and domestic law form part of the same legal system; it does not by itself answer the pivotal question of which law should take precedence in the event of a conflict between the two. Hans Kelsen, a leading proponent of the monist school, considered the issue of primacy to be a matter of ethical or political preference rather than of legal science (Hans Kelsen, Principles of International Law (The Lawbook Exchange, 1952) at pp 446–447). Thus, an acceptance of monism does not necessarily imply the supremacy of international law over domestic law.
[38] In the present case, assuming for the sake of argument that caning does amount to torture, the fact remains that it is expressly authorised (and in some cases mandated) by statute. The courts are bound to implement laws that have been validly passed by Parliament unless these are inconsistent with the Constitution. Thus, in order for the international law prohibition of torture to take precedence over statute law, the Appellant must not only show that it has been incorporated into domestic law but also that it has been given constitutional force. However, the Appellant could not provide any authority for the proposition that a peremptory norm of international law would automatically acquire the status of a constitutional norm when transposed into domestic law. Indeed, in our judgment, such a proposition would be untenable as it would mean that the content of our Constitution could be dictated by the views of other states, regardless of what the people of Singapore, expressing their will through their elected representatives, think (as we have noted earlier at [26], a peremptory norm may crystallise even if a minority of states do not accept it). In our judgment, therefore, even where a CIL rule has acquired the status of jus cogens, it cannot override a domestic statute whose meaning and effect is clear.
[39] That said, for reasons that we explain later (see [90] below), we find that caning in Singapore does not constitute torture. Consequently, in the present case, there is no inconsistency in any event between the peremptory norm against torture and the applicable domestic legislation.
(2) The CRPD
[40] Art 15 of the CRPD states:
[41] The CRPD was ratified by Singapore on 18 July 2013, and no reservations or declarations were made in relation to Art 15. The Appellant therefore contends that the prohibition against torture should be read into the Constitution because it has received express state consent.
[42] In reply, the Respondent argues that treaties entered into by Singapore do not have domestic effect until Parliament enacts legislation to implement them. He further contends that Art 15 must be read in the light of the object and purpose of the CRPD, which is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” (Art 1). Therefore, the prohibition in Art 15 must be limited to persons with disabilities only.
[43] We disagree with the Respondent’s interpretation of Art 15. The phrase “No one” in Art 15 stands in stark contrast with most of the other articles of the CRPD, which make express reference to “persons with disabilities”. Indeed, this was a deliberate decision as can be seen from the drafting history of Art 15 which shows that when the article was first proposed, it had in fact stated that “No person with disabilities shall be subjected to torture…” (Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities on its fifth session (23 February 2005), UN Doc A/AC.265/2005/2 at para 36):
[44] However, the phrase “No person with disabilities” was subsequently changed to “No one” following Uruguay’s proposal that the prohibition of torture and cruel, inhuman or degrading treatment or punishment (or “inhuman punishment” for short) should apply to everyone (Article 15 – Freedom from torture or cruel, inhuman or degrading treatment or punishment, Comments, proposals and amendments submitted electronically, Seventh Session (Uruguay)):
This was accepted and it is therefore clear that Art 15 was intended to apply to all persons, and not just persons with disabilities.
[45] That said, we have already pointed out that Singapore is a dualist jurisdiction (see [29] above). Where a treaty is concerned (and assuming the treaty does not merely codify CIL), specific legislation must be enacted by Parliament to implement the treaty before it would have the force of law within Singapore. This is so because under the Westminster system of government, the authority to sign treaties rests with the Executive, which may commit the State to treaties without obtaining prior legislative approval. If treaties were self-executing, this would allow the Executive to usurp the legislative power of Parliament. As Quentin Loh J noted in The “Sahand” and other applications [2011] 2 SLR 1093 at [33]:
[46] The position in Singapore is consistent with that in the UK. In J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, Lord Templeman said (at 476–477):
[47] Similarly, in A (FC) and others (FC) v Secretary of State for the Home Department [2006] 2 AC 221, Lord Bingham observed that “a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of customary international law” (at [27]).
[48] To advance his argument, the Appellant referred to the High Court decision of Public Prosecutor v Nguyen Tuong Van [2004] 2 SLR(R) 328, which he submitted is authority for the proposition that treaty law possesses greater force than CIL for the purposes of domestic incorporation. With respect, this is an erroneous reading of what was said in that case. There, Kan Ting Chiu J was not comparing treaty law with CIL but to a statement signed by various Chief Justices, including the Chief Justice of Singapore, at an international conference. Kan J simply observed that the statement did not have the force of a treaty or convention: (at [99]–[101]):
[49] The Appellant also referred to a blog post by Jaclyn Neo titled “The Status of International Human Rights Conventions under Singapore Domestic Law” (http://singaporepubliclaw.com/2013/11/26/the-status-of-international-human-rights-conventions-under-singapore-domestic-law/ (last accessed on 10 February 2015)), in which she advocated the “interpretive incorporation” of treaty law:
[50] Insofar as the exercise of “interpretive incorporation” entails the interpretation of domestic laws to be consistent with Singapore’s international obligations as far as possible, this has in fact been accepted by this court (Yong Vui Kong (MDP) at [59]). But there are limits to interpretation; neither CIL nor treaty law can trump an inconsistent domestic law that is clear and unambiguous in its terms and pretending that the court is engaged in an interpretative exercise does not change this. As Diplock LJ said in Salomon v Commissioners of Customs & Excise [1967] 2 QB 116 at 143:
[51] This principle was later reaffirmed by the House of Lords in Regina v Secretary of State for the Home Department, Ex parte Brind and others [1991] 1 AC 696 at 760, where Lord Ackner noted: “[I]t is a constitutional principle that if Parliament has legislated and the words of the statute are clear, the statute must be applied even if its application is in breach of international law.”
[52] In the present case, s 33B(1)(a) of the amended MDA (which is the material provision here) is clear and unambiguous. It states:
There is thus no room for this Court to “interpret” s 33B(1)(a) in a manner that would allow the Appellant to escape a sentence of caning.
[53] The sum of our reasoning thus far is that international law does not provide assistance to the Appellant. Even if we accept that international law contains a prohibition on torture whether under CIL or treaty law; even if that prohibition has jus cogens status; and even if we operate on the premise that caning amounts to torture, the simple reality is that Singapore’s dualist framework means that a domestic law mandating caning cannot be impugned by reason alone of its incompatibility with international law.
The common law
[54] Unable to draw support for his position from international law, the Appellant’s next line of argument places reliance on the common law prohibition on torture. He cites A and others v Secretary of State for the Home Department (No 2) [2006] 2 AC 221 (“A v Home Department (No 2)), which was a decision of the House of Lords on whether evidence procured through torture by a foreign state (without the complicity of British authorities) was admissible in court. The House of Lords held that it was not. In the course of their speeches, a number of the law lords observed that torture is prohibited by the common law. Lord Nicholls of Birkenhead noted (at [64]):
[55] In a similar vein, Lord Rodger of Earlsferry said (at [129]):
[56] The Appellant argues that the common law prohibition of torture was imported into domestic law via Art 162 of the Constitution, which provides that:
[57] In Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] 1 SLR 52, this Court held (at [250]) that Art 105(1) of the Constitution of the State of Singapore set out in Schedule 3 of the Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (GN No S 1 of 1963), which is the predecessor of Art 162, was a “law-enacting provision”. Accordingly, the Appellant contends that Parliament had expressly enacted the common law prohibition of torture.
[58] We agree that there is a common law prohibition against torture, and that this prohibition has been imported into domestic law pursuant to (what is now) Art 162 of the Constitution. But there are two reasons why this proposition does not take the Appellant very far.
[59] First, the common law prohibition of torture referred to by the House of Lords in A v Home Department (No 2) has a narrow and specific compass. As the extracts reproduced at [54]–[55] above show, the Law Lords were concerned with the practice of torturing suspects or witnesses for the purpose of extracting evidence and confessions. But this prohibition, which has an ancient pedigree, did not cover the treatment of criminals after they were found guilty of their crimes. Thus, in his historical survey of the use of torture in England, Jardine noted that the last recorded instance of the infliction of torture in England occurred in 1640, where a royal warrant was issued authorising the Lieutenant of the Tower of London to take one John Archer to the rack, and “if upon sight of the rack he does not make a clear answer, then they are to cause him to be racked as in their discretions shall be thought fit” (David Jardine, A Reading on the Use of Torture in the Criminal Law of England (Baldwin and Cradock, 1837) at p 57). Yet excruciating methods of execution such as hanging, drawing and quartering persisted in England till the 19th century. This point was starkly, even if acerbically, made in A Lawrence Lowell, “The Judicial Use of Torture” (1897) 11 Harvard L Rev 220 as follows (at p 290):
[60] It may also be noted that judicial whipping as a general sentence was only abolished in England in 1948 (by s 2 of the Criminal Justice Act 1948 (c 58) (UK)), and prison floggings in 1967 (by s 65 of the Criminal Justice Act 1967 (c 80) (UK)). It is therefore clear that the common law prohibition of torture does not prohibit caning or any other form of corporal punishment.
[61] Second, even if we assumed for the sake of argument that caning falls within the scope of the common law prohibition, which was legislatively enacted into Singapore law in 1963, there still remains the question as to whether a general prohibition of torture can prevail over s 33B(1)(a) of the amended MDA. The Appellant suggests that the prohibition of torture should be given constitutional force as a fundamental rule of natural justice, so that it would take precedence over normal legislation. This argument drew its inspiration from the pronouncement of the Privy Council in Ong Ah Chuan v PP [1979–1980] SLR(R) 710 (“Ong Ah Chuan”), (at [26]) that:
[62] It is sometimes suggested that the fundamental rules of natural justice contain substantive legal rights. This would be a mistake. As one commentator puts it (Frederick F. Shauer, “English Natural Justice and American Due Process: An Analytical Comparison” (1976) 18 William & Mary L Rev 47 at p 48):
[63] To similar effect, the Privy Council in Haw Tua Tau and others v Public Prosecutor [1981–1982] SLR(R) 133, noted (at [9]):
[64] The fundamental rules of natural justice in the common law are therefore procedural rights aimed at securing a fair trial. Torture in its narrow sense (where it is used to extract evidence to be used as proof in judicial proceedings) would violate the fundamental rules of natural justice; to convict a person based on evidence procured by torture strikes at the very heart of a fair trial. But the fundamental rules of natural justice have nothing to say about the punishment of criminals after they have been convicted pursuant to a fair trial. In our judgment, therefore, even assuming the common law prohibition of torture extends to caning in the context of a punishment to be imposed on a convicted person after trial, it would not have constitutional force because this would not come within the ambit of fundamental rules of natural justice in the sense in which it was referred to in Ong Ah Chuan.
[65] Hence, that aspect of such a prohibition would be entitled to no greater weight than any other law. To resolve an inconsistency between such a prohibition and statutory provisions that mandate caning, it would be necessary to apply the principles of statutory interpretation, such as the principle that a later law abrogates earlier contrary laws (leges posteriores priores contrarias abrogant) and the principle that a general provision does not derogate from a special one (generalia specialibus non derogant) (Oliver Jones, Bennion on Statutory Interpretation (LexisNexis, 6th Ed, 2013) at pp 279–282). Clearly, s 33B of the amended MDA, which was enacted later and which governs the specific situation before us, would override any prior enactment of the general common law prohibition of torture insofar as caning is concerned.
[66] The distinction between the fairly narrow concept of torture prohibited by the common law (as described at [59] above) and the broader meaning that the term ordinarily bears also addresses a passage in Yong Vui Kong (MDP) which the Appellant placed repeated emphasis on. In that case, this court held that the Government’s decision to reject a proposed constitutional provision prohibiting inhuman punishment (among other things) meant that such a prohibition could not be read into the Constitution (at [74]). But this Court went on to observe (at [75]):
[67] In our judgment, this passage when read in context cannot be read as an implicit endorsement of the view that the broad international law norm against torture has constitutional force in Singapore. It is correct to say that the first of these three sentences suggests that any piece of legislation permitting torture would not be “law” within the meaning of Art 9. But it should not be assumed that the Court there was referring to torture in the broad sense in which it is commonly used. The more plausible view is that the court was referring to the narrower common law prohibition of torture as defined in [59] above (which, as we have held, constitutes a fundamental rule of natural justice that cannot be abrogated by ordinary legislation). In any event, regardless of which definition of torture was being applied, the court in that case clearly did not think that caning was torture because it was aware that caning is permitted under Singapore law (see Yong Vui Kong (MDP) at [69]) and it then went on to say that currently, no domestic legislation permits torture. It therefore follows that the above passage in Yong Vui Kong (MDP) is of no assistance to the Appellant insofar as caning is concerned.
An unenumerated constitutional right
[68] Having failed on both the first two grounds, the Appellant then submitted that a prohibition against torture and inhuman punishment should be read into the Constitution because such practices violate “first principles of natural law”. In this regard, the Appellant placed reliance on the High Court decision of Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matter [2012] 4 SLR 947 (“Mohammad Faizal”), which he submitted stands for the proposition that certain unenumerated rights might exist in the Constitution. In Mohammad Faizal, Chan Sek Keong CJ (sitting in the High Court) held that the principle of separation of powers is part of the “basic structure” of the Constitution (at [11]):
[69] The basic structure doctrine postulates that there are certain fundamental features of a constitution that cannot be amended by Parliament. It derives from the decision of the Supreme Court of India in Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 (“Kesavananda”), where the court held that “every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same” (at [316]). An example of a feature that is part of the basic structure of the Constitution is the separation of powers (as was held in Mohammad Faizal). Another example is possibly the right to vote. This right cannot be found in the Constitution; indeed, like the prohibition against inhuman punishment it was one of the rights which the constitutional commission chaired by Wee Chong Jin CJ recommended to be included in the Constitution (Report of the Constitutional Commission 1966 (27 August 1966) at para 43), but which ultimately was not adopted by the Government. Nonetheless, in relation to the right to vote, the Government acknowledged in 2001 that this is part of the basic structure of the Constitution (Singapore Parliamentary Debates, Official Report (16 May 2001) vol 73 at col 1726 (Wong Kan Seng, Minister for Home Affairs and Leader of the House)):
[70] Likewise, in Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1, we located the philosophical underpinnings of the right to vote in the Westminster model of government set up by the Constitution (at [79]):
[71] These examples show that in order for a feature to be considered part of the basic structure of the Constitution, it must be something fundamental and essential to the political system that is established thereunder. As observed in Calvin Liang and Sarah Shi, “The Constitution of Our Constitution, A Vindication of the Basic Structure Doctrine” Singapore Law Gazette (August 2014) 12 at paras 38 and 46:
[72] We have outlined the contours of the basic structure doctrine above only to show that it is inapplicable in the present case: clearly, there is nothing inherent in the system of government set up by our Constitution which requires a finding that the prohibition against torture forms part of its basic structure. However, this also means that it is unnecessary in this case for us to reach the question of whether such a doctrine as was set down in Kesavananda is or is not a part of our law, nor, if it were, what its extent or effect might be. Kesavananda holds that the basic structure of a constitution may not be amended even by a validly passed constitutional amendment. In Teo Soh Lung v Minister for Home Affairs and others [1989] 1 SLR(R) 461 (at [47]), F A Chua J held that the basic structure doctrine does not apply in Singapore; on appeal, this Court considered it unnecessary to decide the issue definitively (Teo Soh Lung v Minister for Home Affairs and others [1990] 1 SLR(R) 347 at [44]). Similarly, since we are not considering the validity of a constitutional amendment, this issue does not arise for our decision here and we therefore express no view on this.
[73] Moving away from the basic structure doctrine, the Appellant has not supplied any other legal basis to justify reading a prohibition against torture into the Constitution aside from a general invocation of “natural law”. In our judgment, where a right cannot be found in the Constitution (whether expressly or by necessary implication), the courts do not have the power to create such a right out of whole cloth simply because they consider it to be desirable or perhaps to put in terms that might appear more principled, to be part of natural law. We note that even among natural law theorists, there is no consensus on what natural law requires of judges. Some have contended that natural law in fact requires judges to respect the boundaries of the authority conferred upon them by the Constitution. As argued in Robert P George, “The Natural Law Due Process Philosophy” (2001) 69 Fordham L Rev 2301 at pp 2303–2304:
[74] Another academic has pointed out that natural law and natural rights were not originally understood (in the American context) as a source of constitutional rights. To the contrary, it was used to explain why individuals gave up some of their natural rights to civil government, with written constitutions serving as a record of which rights were retained (Phillip A Hamburger, “Natural Rights, Natural Law, and American Constitutions” (1993) 102 Yale LJ 907 at p 956):
[75] Further, reading unenumerated rights into the Constitution would entail judges sitting as a super-legislature and enacting their personal views of what is just and desirable into law, which is not only undemocratic but also antithetical to the rule of law. In our judgment therefore, there is no basis for reading rights into the Constitution on the basis of natural law, and we reject the Appellant’s arguments under this rubric.
Does caning constitute torture?
[76] This is sufficient to dispose of the appeal since we have held that caning is not covered by the common law conception of torture (see [59] above), and further, that even if caning does constitute torture under international law, domestic statutes would take precedence over any international law norms in the event of any inconsistency between the two (see [38] above). As caning is specifically mandated by statute and there is nothing to invalidate it, the challenge under Art 9(1) must fail. However, the parties have made extensive submissions on whether caning falls within the international law definition of torture and we will therefore turn to consider this issue.
[77] The Appellant argues that we should refer to the Geneva Conventions Act (Cap 117, 1985 Rev Ed) (“the GCA”) as it is the only domestic statute that includes a definition of torture. Article 87 of the Third Schedule to the GCA (which enacts the Third Geneva Convention) states:
The Appellant argues that the italicised portion of the foregoing provision indicates that corporal punishment is a form of torture.
[78] We find no force in this argument at all. In the first place, we do not read Art 87 as saying that the specifically prohibited acts constitute instances of torture. Examples such as imprisonment in premises without daylight appear to fall well short of that threshold. In our judgment, a more plausible interpretation is that those acts were mentioned precisely because the drafters wished to make it clear that they were prohibited even though they might not necessarily rise to the level of torture. More importantly, the Third Geneva Convention is concerned with the treatment of prisoners of war and its provisions were aimed at curbing abuses commonly experienced by them. It does not purport to lay down a definition of torture that is of general application to everyone. As noted in Jean Pictet, Commentary on the Geneva Conventions of 12 August 1949 vol III (International Committee of the Red Cross, 1960) at pp 432, the Third Geneva Convention might sometimes result in prisoners of war being accorded better treatment than members of the Detaining Power’s armed forces:
[79] Next, the Appellant referred to the definition of torture in Art 1 of the CAT, which states as follows:
It has been held that this definition of torture reflects the definition of torture in CIL as well (Furundžija at [160]–[161]).
[80] There are two important points to note about the CAT’s definition of torture. First, it excludes pain and suffering arising only from “lawful sanctions”. Might it be argued that caning is a lawful sanction that falls within this exception? On the one hand, it appears that the phrase “lawful sanctions” was deliberately left vague when the CAT was drafted so as to bring more states on board. Fuzziness might be thought to have its virtues. When states were invited to comment on the draft convention, many of them noted that it was a compromise text that was not fully satisfactory. A number of states (including Italy, the Netherlands, the UK and the US) commented specifically on the phrase “lawful sanctions”, saying that a sanction must be lawful under both national and international law to fall within this exception (Report of the Secretary-General, Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 2 October 1984, UN Doc A/39/499 at pp 11, 13, 19 and 21). In a 1995 report, the Special Rapporteur to the UN Commission on Human Rights addressed this issue and opined that the lawful sanctions exclusion “must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment” (Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in particular Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Report of the Special Rapporteur, Nigel S Rodley, submitted pursuant to Commission on Human Rights resolution 1995/37 B, 10 January 1997, UN Doc E/CN.4/1997/7 at para 8). Likewise, in a meeting to discuss a report submitted by Kuwait under Art 19 of the CAT, the Chairman noted that for a sanction to be lawful under Art 1, it must be lawful not only under domestic law “but also in terms of basic internationally recognized norms” (Committee against Torture, 20th Session, Summary Record of the Public Part of the 334th Meeting, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, 19 October 1998, UN Doc CAT/C/SR.334 at para 18).
[81] On the other hand, this view of the “lawful sanctions” exceptions would seem to rob the exception of any meaningful content. The exception was meant to take certain types of conduct outside the ambit of the prohibition on torture. In other words, conduct causing pain and suffering that would or might otherwise be caught by the prohibition of torture would not be caught by it if the pain and suffering was inherent in or incidental to lawful sanctions. This would be workable if the lawfulness of such sanctions were to be judged as a matter of domestic law only. Once this was extended to international law however, the exception would become meaningless because in such a situation:
(a) either the conduct in question does not on any view constitute torture, in which case there would be no need or occasion to invoke the “lawful sanctions” exception at all since the conduct would not be caught by the prohibition to begin with; or
(b) the conduct in question does in principle fall within the definition of torture but in such a case, it would seem that the exception cannot then be invoked at all because it would be considered unlawful under international law.
[82] If this analysis is right, then the fuzziness would appear to have been calculated and the “lawful sanctions” exception was devised as a meaningless gesture made to secure the necessary support. We are doubtful this can be right but, given the views to the contrary that we have referred to at [80] above, we prefer not to place reliance on the “lawful sanctions” exception in deciding whether caning constitutes torture.
[83] The second point to note in relation to the definition of torture in the CAT is that international law draws a distinction between torture and inhuman punishment. This distinction is enunciated in Art 1 of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 9 December 1975, A/RES/3452(XXX), which states that torture constitutes “an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment”. The same distinction is made in Art 16 of the CAT, which refers to “acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in [Art 1]”. In Ireland v The United Kingdom [1978] ECHR 1 at [167], the European Court of Human Rights (“ECHR”) explained that the distinction between torture and inhuman punishment “derives principally from a difference in the intensity of the suffering inflicted”. This court has held in Yong Vui Kong (MDP) (at [72]) that there is no prohibition against inhuman punishment in Singapore law, the Appellant would therefore have to establish that caning does not merely constitute inhuman punishment but crosses into the realm of torture.
[84] In this regard, it is helpful first to consider the types of conduct that international courts have found to constitute torture. The Respondent has tendered a number of such cases which illustrate the severity and brutality of the conduct that is required to breach this threshold. We cite a few examples below:
(a) In Korobov v Ukraine (Application No 39598/03, Judgment of 21 July 2011), the victim was beaten up and repeatedly shocked with electricity by the police while in custody. He suffered serious injuries including two broken ribs, a kidney contusion and haematuria (red blood cells in his urine). Although he was unable to furnish medical records to prove that his injuries were sustained while in custody, the ECHR considered it the Government’s duty to conduct a proper medical examination after arresting him (at [68]–[70]) and held that the victim’s injuries were sufficiently serious to amount to torture under Art 3 of the European Convention on Human Rights (at [73]–[74]).
(b) In Aksoy v Turkey (Application No 21987/93, Judgment of 18 December 1996), the victim claimed to have been suspended from his arms, which were tied together behind his back (a form of treatment know as a “Palestinian hanging”); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. There was medical evidence showing that the victim had suffered radial paralysis of both arms consistent with Palestinian hanging. Noting that “the special stigma of ‘torture’ [would] attach only to deliberate inhuman treatment causing very serious and cruel suffering”, the ECHR held that Palestinian hanging was of such a serious and cruel nature that it could only be described as torture (at [63]–[64]).
(c) In El-Masri v The Former Yugoslav Republic of Macedonia (Application No 39630/09, Judgment of 13 December 2012), the victim was beaten severely by several men, stripped, and sodomised with an object. He was then shackled and hooded and marched to an airplane. When on the plane, he was thrown to the floor, chained down and forcibly tranquilised. The ECHR held that such treatment amounted to torture (at [211]).
(d) In Prosecutor v Miroslav Kvocka et al (Case No IT-98-30/1, Judgment of 2 November 2001), the victims were held in detention camps. They were not allowed to use toilet facilities and were given rotten food and insufficient drinking water. They were also routinely beaten with army boots, rifle butts, hands and fists. The vast majority of detainees received no medical care for their wounds or ailments, and dead bodies were left outside to fester for days at a time. The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia held that the victims had been subjected to torture (at [158]).
(e) In Husayn (Abu Zubaydah) v Poland (Application No 7511/13, Judgment of 24 July 2014), the applicant was subjected to brutal interrogation techniques which included beating and kicking, confinement in a box, exposure to cold temperature, food deprivation, and at least 83 sessions of waterboarding. These were carried out by the US Central Intelligence Agency for the purpose of extracting information from the applicant. The ECHR held that such treatment amounted to torture (at [511]).
[85] These and the other cases tendered by the Respondent share a number of notable features. First and foremost, these and indeed the substantial majority of all the cases concerned extra-legal acts of abuse committed by public officers to extract information from individuals in custody or war crimes committed by military officers during times of civil upheaval. None of them concerned the execution of a punishment prescribed by law and implemented in accordance with legal requirements. Second, the victims in those cases underwent severe levels of physical and serious physical injuries and mental suffering that seemed to us to far exceed that caused by a sentence of caning.
[86] Some cases were cited that dealt with judicial corporal punishment imposed as a sanction by the courts but these evince no consensus on whether this amounts to torture. Although corporal punishment has been ruled unconstitutional in a number of countries, those rulings were made pursuant to constitutions which outlawed inhuman punishment in addition to torture (see, eg, Ncube v The State [1988] LRC (Const) 442 (Supreme Court of Zimbabwe); In re Corporal Punishment By Organs of State [1991] NASC 2 (Supreme Court of Namibia); S v Williams and Others [1995] ZACC 6 (Constitutional Court of South Africa); Banda v The People (2002) AHRLR 260 (High Court of Lusaka in Zambia)). The courts in those cases appeared to regard corporal punishment as a form of inhuman punishment, but stopped short of calling it “torture”. Thus, in Tyrer v The United Kingdom [1978] ECHR 2 (“Tyrer”), the ECHR found that the practice of juvenile birching (which involves the whipping of the clothed posterior of boys with either a light cane or a birch rod) did not constitute torture but rather amounted to “degrading punishment”.
[87] Of the many authorities that were brought to our attention, in only one case was corporal punishment expressly held to constitute torture. This was in Caesar v Trinidad and Tobago (Series C, No 123, Judgment of 11 March 2005) (“Caesar”). In that case, the victim was lashed 15 times across his back with a cat-o’-nine tails (which consisted of a plaited rope instrument made up of nine knotted thongs of cotton cord, 30 inches long and less than one quarter of an inch in diameter each, attached to a handle) as part of a sentence of flogging. The flogging was carried out 23 months after the victim was sentenced, and before it took place, he was deliberately forced to witness the effects of flogging on other prisoners on three or four separate occasions. After the flogging, he remained in the infirmary for two months where the only medical treatment given to him consisted of painkillers. The Inter-American Court of Human Rights held that this form of corporal punishment constituted a form of torture under Art 5(2) of the American Convention on Human Rights (at [73]). We note in passing that in Singapore, the use of the cat-o’-nine-tails as an instrument of punishment was abolished in 1954 by the Criminal Justice (Punishment – Amendment) Ordinance (No 20 of 1954).
[88] The parties also referred us to Curtis Francis Doebbler v Sudan (2003) AHRLR 153 (ACHPR 2003) (“Doebbler”). That case concerned the practice of lashing which was a form of corporal punishment authorised by the criminal law of Sudan. The victims were female students who were convicted of offences involving supposedly immoral conduct such as talking with boys and wearing trousers. They were sentenced to fines and between 25–40 lashes each, which were carried out in public on their bare backs. The instrument used was a wire and plastic whip which was not clean, and no doctor was present to supervise the execution of the punishment, thereby exposing the victims to the risk of infection. The African Commission on Human and Peoples’ Rights held that this punishment violated Art 5 of the African Charter on Human and Peoples’ Rights, which prohibited “torture, cruel, inhuman or degrading punishment and treatment”. However, it appears that the Commission in that case did not draw any distinction between inhuman punishment and torture, and indeed used the language of inhuman punishment rather than torture throughout most of its decision (see [35]–[38]).
[89] It is evident from the preceding authorities that to determine whether particular conduct constitutes torture entails a fact-sensitive inquiry that requires a holistic analysis of the purpose of the conduct, the manner of its execution and its effect on the recipient. In Singapore, the features of caning, which may be administered in private and only as punishment and not for other extraneous purposes, are as follows:
(a) it is carried out using a rattan cane of not more than 1.27 centimetres in diameter (s 329(3) CPC);
(b) it is not to be carried out in instalments (s 330(1) CPC), thereby ensuring that prisoners sentenced to caning are done with it in a single session and do not have to go through the process repeatedly even if the full sentence might not have been administered for medical reasons;
(c) the maximum number of strokes that can be inflicted on the offender at any one time is 24 strokes in the case of an adult regardless of the number of charges the offender has been convicted of and what the actual cumulative prescribed punishment might be (s 330(2) CPC);
(d) caning may be inflicted only if a medical officer is present and certifies that the offender is in a fit state of health to undergo such punishment, and must be stopped if, during the execution of the sentence, the medical officer certifies that the offender is not fit to undergo the rest of the sentence (s 331(1) CPC); and
(e) women, men above the age of 50, and men sentenced to death whose sentences have not been commuted may not be punished with caning (s 325(1) CPC).
[90] Having regard to these features, we are satisfied that while caning in Singapore is a more severe form of punishment than the juvenile birching that was in issue in Tyrer, it is less severe than the flogging in Caesar and quite different from the public lashing of the female students in Doebbler.
[91] It is undeniably the case that caning inflicts a considerable level of pain and suffering. But it is evident from the cases we have referred to above that the “special stigma” of torture has been reserved by international courts and tribunals for instances of severe and indiscriminate brutality (such as those described in [84] above), and this is simply not the case with caning that is administered in Singapore as a punishment for selected crimes.
[92] The Appellant submitted that the CPC provisions do not address important aspects of the execution of caning, such as whether the rattan cane should be sterilised, the characteristics of the caner, the positioning of the prisoner, the process of caning itself, and its aftermath. He argues that without clear rules governing these aspects of caning, there are no safeguards to ensure that it is not administered in a manner that amounts to torture. The Appellant further contends that the Commissioner of Prisons (“the Commissioner”) has no authority to fill in these gaps and determine the mode of executing a sentence of caning by himself. Consequently, any act of purported caning by the Commissioner would be ultra vires the CPC and unlawful.
[93] We disagree with the Appellant’s argument on the Commissioner’s authority. Under s 317 of the CPC, the Commissioner or the officer appointed by him is given “full authority” to carry out a sentence of caning on a prisoner upon receiving the relevant warrant forwarded by the court. In our judgment this authority must plainly include the power to determine the manner in which caning is to be carried out. Without this power, the Commissioner would be unable to perform his statutory duty. As stated in s 29(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”):
[94] In Public Prosecutor v Li Weiming and others [2014] 2 SLR 393, a similar issue arose in relation to s 160(1) of the CPC, which states:

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Yong Vui Kong v Public Prosecutor

Laws this judgment relies on

Grounds of decision

Introduction

Background facts

Grounds of appeal

Correspondence and submissions after the hearing

Issues arising in this appeal

The Torture Issue

(a) Does caning constitute a deprivation of “life or personal liberty” within the meaning of Art 9(1)?

(b) Does the law of Singapore prohibit torture?

(c) Does caning constitute torture?

Does caning constitute a deprivation of “life or personal liberty”?

Does the law of Singapore prohibit torture?

International law

(1) Jus cogens

(2) The CRPD

The common law

An unenumerated constitutional right

Does caning constitute torture?