Changes to the Misuse of Drugs Act 2012 in Singapore

Quek Hock Lye v Public Prosecutor [2015] 2 SLR 563

1. Introduction 

This was a Constitutional Law case heard by the Court of Appeal. It dealt with the issue of whether the retroactive amendments to the Misuse of Drugs Act (“MDA”) which enable some drug traffickers who were already convicted and sentenced to death to apply to be resentenced to life imprisonment instead, violated Article 12 (1) of the Constitution.

Article 12 (1) of the Constitution read:

12.—(1) All persons are equal before the law and entitled to the equal protection of the law.

2. Background

The Applicant was convicted of one count of trafficking in more than 15 grammes of diamorphine by the High Court in Public Prosecutor v Phuthita Somchit and another [2011] 3 SLR 719. Diamorphine is categorised by the Misuse of Drugs Act as a Class A Drug. The Applicant was sentenced to the then-mandatory death penalty.

In April 2012, the Applicant’s appeal against conviction in Quek Hock Lye v Public Prosecutor [2012] 2 SLR 1012 was dismissed.

In November 2012, Parliament passed the MDA (Amendment) 2012 which included the new regime under section 27((1) and amended the MDA to include the present section 33B.

Section 27 of the MDA (Amendment) 2012 read:

27.—(1)  Where, on or after the appointed day, a person is convicted of a relevant offence committed before that day, he may be sentenced in accordance with section 33B of the principal Act if the court determines that the requirements referred to in that section are satisfied.

…

(9)  In this section —

“appointed day” means the date of commencement of this section;

“relevant offence” means an offence under section 5(1) or 7 of the principal Act, or an attempt to commit an offence under section 5(1) or 7 of the principal Act, and which offence is punishable by death under the sixth column of the Second Schedule to the principal Act.

3. Conclusion

The Applicant then sought from the Attorney-General’s Chambers the certificate of co-operation under section 33(B)(2)(b) of the MDA. He also volunteered to give information relating to any drug trafficking offences he was aware of. His application was dismissed. The Public Prosecutor had refused to issue the certificate of co-operation to him. The Applicant is thus unable to apply for re-sentencing in accordance with section 33B of the MDA.

The Applicant argued that the retrospective nature of section 27(6) allows offenders in the same legal class (that is, the class of persons convicted and sentenced to death for trafficking more than 15 grammes of diamorphine) to be unfairly discriminated against, violates Article 12 of the Constitution. This violated the constitutional guarantee of equality protection before the law because certain individuals who had previously been convicted of capital offences, could now be spared the death penalty.

In dismissing the case, the court added that it would leave the applicant with no way to have his death penalty sentence changed as the effect of succeeding in the case would have the section 27 struck down.