The discretionary death penalty for drug couriers in Singapore

Published date01 January 2016
Date01 January 2016
Subject MatterArticles
The discretionary death
penalty for drug couriers in
Singapore: Four challenges
Chen Siyuan
Singapore Management University, Singapore
In 2012, Singapore amended its Misuse of Drugs to give courts hearing capital drug trafficking
cases the discretion to replace the default death penalty with life imprisonment and caning,
provided that the accused person can show that he was merely a drug courier and the pro-
secution certifies that he had substantively assisted the authorities in disrupting drug trafficking
activities. The Singapore High Court and Court of Appeal have since made important pro-
nouncements on the 2012 amendments, but several challenges remain: first, whether the
privilege against self-incrimination has been further eroded; secondly, whether an accused
person can invoke the statutory relief of being a courier only at sentencing; thirdly, whether it
is appropriate to leave the certification decision solely to the prosecution; and finally, whether
guidelines as to when the death sentence is appropriate should have been prescribed. These
challenges ought to be given serious legislative or judicial consideration as the criminal justice
system in Singapore continues to evolve in response to changing public perceptions of due
process and crime control. The first three challenges, in particular, may have important
ramifications for potentially innocent accused persons as it is submitted that the law as it stands
may incentivise some of them to plead guilty from the outset to maximise their chances of
avoiding the death penalty. As there are still a number of jurisdictions that retain the mandatory
death penalty for drug trafficking offences, this article may also be of comparative interest,
especially since there appears to be a dearth of literature on the discretionary death penalty for
drug offences.
Discretionary death penalty, drug couriers, Misuse of Drugs Act, Prosecutorial discretion,
Singapore criminal evidence law
Corresponding author:
Chen Siyuan, Singapore Management University, 81 Victoria St, Singapore 188065, Singapore.
The International Journalof
Evidence & Proof
2016, Vol. 20(1) 49–71
ªThe Author(s) 2015
Reprints and permissions:
DOI: 10.1177/1365712715613493
Singapore has always taken a firm stance against drug trafficking.
Between 1975 and 2012, drug traf-
ficking was an offence punishable by the mandatory death penalty, but one of the criticisms levelled
against this was that the majority of drug trafficking convictions only resulted in the hanging of low-
level operatives working for drug syndicates and had no deterrent effect against the kingpins who con-
trolled the syndicates.
In 2012, Singapore’s Misuse of Drugs Act (MDA)
was amended to reflect—on
one view at least—a ‘calibrated distinction between the different levels of accountability’ of different
levels of operatives in drug syndicates and to ‘temper and mitigate harsh laws with compassion’.
This resulted in the introduction of s. 33B, which gives courts hearing capital drug trafficking cases
the sentencing alternative of life imprisonment and 15 strokes of the cane if two conditions are satisfied:
first, a person who is convicted of drug trafficking
proves, on a balance of probabilities, that his invol-
vement in the offence was restricted to that of a courier;
and secondly, the prosecutor agrees to certify to
the court that the said person had substantively assisted the Central Narcotics Bureau (CNB) in disrupt-
ing trafficking activities within or outside Singapore.
With respect to the latter condition, the decision
can only be challenged on the grounds of bad faith or malice, for which the convicted person bears the
burden of proof.
Since the 2012 amendments, there has been a moratorium on drug-related executions in Singapore,
the High Court has heard and decided more than a dozen s. 33B cases,
and the Court of Appeal (the
1. This article builds on a case comment (Siyuan, 2014) and a follow-up paper presented at the 2014 International Conference on
Law, Order, and Criminal Justice on the same topic (Siyuan, 2015). It reflects the jurisprudential changes that have taken place
since the conclusion of those two pieces.
2. See Second Reading of Misuse of Drugs (Amendment) Bill, Singapore Parliament Reports, 12 November 2012 (Edwin
Tong). Human rights and constitutional challenges against the legality of the mandatory death penalty regime have also failed
before the Singapore courts over the years: see generally Siyuan (2012, 2013). For the prevailing United Nations Human
Rights Council viewpoint on the effectiveness of the death penalty, see
3. Chapter 185, rev. ed. 2008.
4. Second Reading of Misuse of Drugs (Amendment) Bill, Singapore Parliament Reports, 12 November 2012 (Edwin Tong).
Earlier that year, changes were also made to the Penal Code (chap. 224, rev. ed. 2008) to remove the mandatory death penalty
for certain types of culpable homicide offences: Changes to the Application of the Mandatory Death Penalty to Homicide
Offences, Singapore Parliament Reports, 9 July 2012 (Kasiviswanathan Shanmugam); Public Prosecutor vKho Jabing
5. Sections 5 and 7 read with s. 33 of the MDA make it an offence for a person to traffic in controlled drugs, while the Second
Schedule stipulates if an offence carries the death penalty.
6. The actual words used in s. 33B are ‘transporting, sending or delivering a controlled drug’ and include offers to do so and any
act preparatory for such purposes. It was in Parliament that the term ‘drug courier’ was used to describe persons wishing to
avail themselves of s. 33B: Second Reading of Misuse of Drugs (Amendment) Bill, Singapore Parliament Reports,12
November 2012. ‘Courier’ was also used in the judgments that will be discussed in this article.
7. A convicted drug courier can also escape the death penalty under s. 33B(3) if (apart from proving that his involvement was
restricted to that of a courier) he can prove that he was suffering from such abnormality of mind that it substantially impaired
his mental responsibility for his acts and omissions in relation to the offence. However, due to space constraints this relief will
not be discussed in this article.
8. MDA, s. 33(4). The standard of proof is also the balance of probabilities.
9. Pao-Keerthi (2014: 521); Yong Vui Kong vPublic Prosecutor [2015] 2 SLR 1129 at [4]–[5].
10. This figure does not include decisions without written grounds. The decisions that include written grounds are: Public
Prosecutor vAbdul Haleem bin Abdul Karim [2013] 3 SLR 734 (which led to a quasi-appeal in the form of Muhammad
Ridzuan bin Md Ali vPublic Prosecutor [2014] 3 SLR 721); Public Prosecutor vChum Tat Suan [2014] 1 SLR 336; Public
Prosecutor vAbdul Kahar bin Othman [2013] SGHC 222; Cheong Chun Yin vAttorney-General [2014] 3 SLR 1141 (a
judicial review against the certification decision); Muhammad Ridzuan bin Mohd Ali vAttorney-General [2014] 4 SLR 773
(also a judicial review, and which appeal will be heard later in 2015); Public Prosecutor vMuhammad Farid bin Mohd Yusop
[2014] SGHC 125 (whether the certification process can be bypassed via an amendment of the charge); Public Prosecutor v
Mahesvaran a/l Sivalingam [2014] SGHC 182 (sentencing considerations as to whether death penalty is appropriate even after
certification); Public Prosecutor vPurushothaman a/l Subramaniam [2014] SGHC 231 (also a case on sentencing
50 The International Journal of Evidence & Proof 20(1)

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