HUMAN RIGHTS FOR EACH PERSON REGARDLESS OF AGE, RACE, RELIGION OR POLITICS
Nguyen Tuong Van Court Transcript
Nguyen Tuong Van
||20 Mar 2004
||Kan Ting Chiu
Han Ming Kuang
and Lee Cheow Han (Deputy Public Prosecutors) for prosecution, Joseph
Theseira (Naidu Mohan and Theseira) and Tito Shane Isaac (Tito Isaac and
Co) for accused
20 March 2004
Kan Ting Chiu J:
Admissibility of the cautioned statement
- The accused, Nguyen Tuong Van, appeared before me charged that he:
[O]n the 12th day of December 2002, at or about 3.06 pm, at Changi International
Airport Terminal 2, Singapore, did import into Singapore, a controlled drug
specified in Class “A” of the First Schedule to the Misuse of
Drugs Act, Chapter 185, to wit, 2 packets of powdery substance containing
not less than 396.2 grams of diamorphine, without any authorisation under
the said Act or the Regulations made thereunder, and [he has] thereby committed
an offence under section 7 of the Misuse of Drugs Act, Chapter 185 and punishable
under section 33 of the Misuse of Drugs Act.
- He is an Australian national aged 23 years. On 12 December 2002 he arrived
in Singapore from Phnom Penh. At about 7.45pm he was at Boarding Gate C22
of the airport waiting to board a flight to Melbourne. During a routine check,
a police officer felt something bulky on his lower back. He was brought to
a search room for a thorough search, taking his haversack and business bag
- In the search room he was asked to remove his jacket and shirt. When that
was done, a plastic packet was seen strapped to his lower back with masking
tape. At that stage he started crying and tried to hit his head against a
- Sergeant Teh Kim Leng (“Sgt Teh”), the officer in charge of
the security screening unit, was notified. He went to the search room and
saw the accused, who appeared to be in distress, holding his head with his
hands. When Sgt Teh asked him what was on his back, the accused replied that
it was heroin. With the help of Sgt Teh the accused removed the packet from
his body. When Sgt Teh asked him if there was anything to declare in his luggage,
the accused opened the haversack, took out another packet, and handed it to
- The two packets were subsequently sent for analysis. The packet from the
body was found to contain not less than 151.5g of diamorphine and the other
packet not less than 244.7g. The analysis results were not disputed.
- The Central Narcotics Bureau (“CNB”) was then informed of the
matter. At 9.10pm CNB officers arrived at the airport and took over the case
from the airport police. At about 10.05pm Station Inspector Ng Beng Chin (“SI
Ng”) spoke to the accused and recorded a statement from him. SI Ng and
the accused appended their signatures to the statement after it was recorded
and read back to the accused. The statement read:
Question: What [is] this?
Answer: I know it [is] heroin although different colour.
Question: Number 3 or 4?
Answer: I don’t know.
Question: Who asked you to bring?
Answer: I know him by “Sun”.
Question: To bring where?
Answer: Melbourne and someone [will] take from me or maybe Sydney.
Question: Who will receive the drug at Australia?
Answer: Someone will recognised [sic] me and [tell] me he likes basketball.
- The CNB officers took the accused together with the two packets and other
case exhibits back with them to the CNB Headquarters at Police Cantonment
Complex at about 12.05am on 13 December.
- At about 1.50am, the two packets were weighed. The packet recovered from
the accused’s back weighed 381.66g and the packet from his haversack
- At 4.12am the investigating officer Assistant Superintendent of Police
Toh Soon Teck (“ASP Toh”) recorded a cautioned statement from
the accused. After the cautioned statement was recorded ASP Toh recorded further
statements, which I shall refer to as investigation statements, from the accused.
One was recorded on the same day, 13 December, and the others on 15, 16 and
- Defence counsel accepted that these statements were made voluntarily. Nevertheless,
it was contended that they are not admissible in evidence.
Admissibility of the investigation statements
- This statement was recorded under s 122 of the Criminal Procedure
Code (Cap 68, 1985 Rev Ed) (“CPC”). Sub-sections (6) and (8) thereof
are of particular relevance:
(6) Where any person is charged with an offence or officially
informed that he may be prosecuted for it, he shall be served with a notice
in writing, which shall be explained to him, to the following effect:
“You have been charged with/informed that you may be
prosecuted for —
(8) In subsection (6), “officially informed” means informed
by a police officer or any other person charged with the duty of investigating
offences or charging offenders.
(set out the charge).
Do you wish to say anything in answer to the charge? If there is any fact
on which you intend to rely in your defence in court, you are advised
to mention it now. If you hold it back till you go to court, your evidence
may be less likely to be believed and this may have a bad effect on your
case in general. If you wish to mention any fact now, and you would like
it written down, this will be done.”
- Defence counsel’s argument centred on the admissibility of confessions.
Section 17 of the Evidence Act (Cap 97, 1997 Rev Ed) defines “admission”
and “confession” as follows:
(1) An admission is a statement, oral or documentary, which suggests
any inference as to any fact in issue or relevant fact, and which is made
by any of the persons and under the circumstances hereinafter mentioned.
and s 24 provides that:
(2) A confession is an admission made at any time by a person accused of
an offence, stating or suggesting the inference that he committed that offence.
A confession made by an accused person is irrelevant in a criminal
proceeding if the making of the confession appears to the court to have
been caused by any inducement, threat or promise having reference to the
charge against the accused person, proceeding from a person in authority
and sufficient in the opinion of the court to give the accused person grounds
which would appear to him reasonable for supposing that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference
to the proceeding against him.
This has been construed to mean that confessions not so afflicted are relevant
and admissible in evidence.
- Counsel argued that when the accused said in his cautioned statement:
I wish to say that I am sincerely sorry for the inconvenience
to both your country and mine. What I intend to say would be the truth.
However knowing the information would have been fabricated by the people
who have organised this.
he was not making a confession as defined by s 17 or by the test set out by
Lord Guest in Anandagoda v The Queen  1 WLR 817 at 823–824 that:
The test whether a statement is a confession is an objective one,
whether to the mind of a reasonable person reading the statement at the
time and in the circumstance in which it was made it can be said to amount
to a statement that the accused committed the offence or which suggested
the inference that he committed the offence. The statement must be looked
at as a whole and it must be considered on its own terms without reference
to extrinsic facts. ... The appropriate test in deciding whether a particular
statement is a confession is whether the words of admission in the context
expressly or substantially admit guilt or do they taken together in the
context inferentially admit guilt?
- In Abdul Rashid v PP  1 SLR 119 the Court of Criminal Appeal adopted
Lord Guest’s test and added at 129, :
We need only add that, for a statement to amount to a confession,
it need not be of a plenary or unqualified nature and can also be of a non-plenary
nature, so long as the statement connects the accused in some way with the
- Counsel went further, and argued that as ASP Toh is a CNB officer and not
a police officer, the cautioned statement was not admissible under the CPC
as s 122(5) of the CPC stipulates that:
Where any person is charged with an offence any statement, whether
it amounts to a confession or not or is oral or in writing, made at any
time, whether before or after that person is charged and whether in the
course of a police investigation or not, by that person to or in the hearing
of any police officer of or above the rank of sergeant shall be admissible
at his trial in evidence and, if that person tenders himself as a witness,
any such statement may be used in cross-examination and for the purpose
of impeaching his credit:
Provided that the court shall refuse to admit such statement or allow it
to be used as aforesaid if the making of the statement appears to the court
to have been caused by any inducement, threat or promise having reference
to the charge against such person, proceeding from a person in authority
and sufficient, in the opinion of the court, to give such person grounds
which would appear to him reasonable for supposing that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference
to the proceedings against him.
- This argument overlooks the fact that the purpose of recording a cautioned
statement is to get an accused person to respond to a charge after being advised
that if there is any fact that he intends to rely on in his defence in court,
he should mention it in his cautioned statement, and that if he holds it back
till he goes to court, his evidence may be less likely to be believed.
- A cautioned statement is not intended to be taken with a view to obtain
a confession. It is to inform the accused person of the charge he is facing
and to get his response to it. The purpose of a cautioned statement is to
enable the Prosecution to confront the accused at his trial with questions
such as “If this is your defence, why didn’t you disclose it in
your cautioned statement?” or “Why did you not say this, but say
that instead when you made your cautioned statement?” if the accused
presents a defence different from or not disclosed in his cautioned statement.
Conversely, the accused can rely on his cautioned statement to show that he
has been consistent in his defence from the time he was first charged. It
would be a departure from the purpose of recording cautioned statements if
a cautioned statement is only admissible as a confession. If, however, the
cautioned statement also happens to be a confession, it can be admitted and
used as one.
- The power to record cautioned statements is not limited to police officers.
By sub-s (8), other officers charged with the duty of investigating offences
or charging offenders also have the authority. Section 32(2)(a) of the Misuse
of Drugs Act (Cap 185, 2001 Rev Ed) provides that where the offence is seizable,
an officer of the CNB shall have all the powers of a police officer under
the CPC in relation to an investigation into a seizable offence. ASP Toh comes
within s 122(8) as a person charged with the duty of investigating offences
and charging offenders.
- Consequently, while I agree with counsel that the accused’s cautioned
statement is not a confession, I held that it is admissible in evidence under
Vienna Convention on Consular Relations
- The statements recorded on 13, 15, 16 and 19 December were not
recorded under s 122(6) and (8), and as ASP Toh is not a police officer, the
admissibility of the statements is not governed by s 122(5) of the CPC which
governs the admission of statements made to police officers.
- The Court of Criminal Appeal held in Tan Boon Tat v PP  2 SLR 1 at
9–10, , that a confession made to a narcotics officer is admissible
if it complies with s 24 of the Evidence Act.
- The recording of the statement of 13 December started at 4.05pm and ended
two hours later. The statement reads:
- I am known as “Van” to my friends and family members.
- Sometime in October this year, I was in need of money. I had to pay
a debt which I took to pay for my twin brother, Khoa Nguyen, lawyer fees.
I owed about A$20,000 to A$25,000 in total to a friend. My friend is Jonathan
Lim, Australia Chinese. He did not press me for payment but I knew he
needed the money. There was also an A$12,000 loan which my twin brother
took that I needed to repay on his behalf. He only had until the end of
this year to pay up that loan. I did not intend to let my twin brother
know that I am paying his debt. I had managed only to repay about A$4,000
for a period of 8 to 10 months already but that was just enough to cover
for the interests incurred. The A$4,000 was my earnings from my job as
a sales marketing executive. My brother’s lawyer’s fees were
as a result of one drug case and one affray case he got into about 3 years
ago. Since then my brother had been in debts. I had been helping him in
the repayment of loans for the entire three years.
- It was only until October 2002 that I was really desperate as I had
been out of work for 4 months and I still have to repay those loans my
twin brother incurred as well as paying for house rent and expenses. I
rented a house at 66 Brandon Park drive Mulgrave 3150, Melbourne together
with 5 other friends. However only “Sok” and I pay for the
rent. I need to pay about A$580 a month.
- As such I started looking around for help. I did not managed to obtain
help from anyone. Sometime in the first week of November, a male Chinese
known to me as “Tan” contacted me. He asked me whether I was
sure I would do something. I told him yes. Then he told me to go to Sydney
in one week’s time. He did not tell me what was the purpose for
the trip. He just instructed me to go to a hotel called Pacific International
when I arrived at Sydney and someone would contact me there. I had earlier
asked him for help and told him that I needed quick money. His response
to me at that time was he would see what he could do.
- Sometime in mid November this year, I made a trip to Sydney following
“Tan’s” instructions. When I arrived at Pacific International
Hotel, one male Vietnamese “Sun” contacted me. He explained
to me exactly what I am going to do and asked me if I am going to do it.
He told me that I would be carrying a package from Cambodia to Singapore
to Melbourne and possibly Sydney. He told me that the package contained
“white”. I understood that as heroin. It could have been cocaine.
But I do not know if it is heroin or cocaine. However I was quite certain
that it contained drugs. I told “Sun” that I would do it.
“Sun” then told me to return to the same hotel to look for
him before 2 Dec 2002 for the job. “Sun” told me that the
deal was confirmed and I would definitely be making the trip to carrying
that package. After that I returned to Melbourne.
- On the 1 Dec 2002, I made the second trip for Sydney to go to hotel
Pacific International where I met up with “Sun”. He handed
to me a return airfare from Melbourne to Singapore to Phnom Penh. He instructed
me to go to Pacific Hotel when I reached Phnom Penh and to go to a restaurant
across the road called “Lucky Burger” on the 4th and 5th of
Dec 02. Someone was supposed to meet me there.
- I stayed at Pacific International at Sydney until the 2 Dec 02 where
I boarded a Qanta’s Airline during the evening. I arrived in Singapore
for transit at about 3.30 am to 4 am on the 3 Dec 02 for about 3 hours.
Then I boarded a Silkair airline and arrived at Phnom Penh at about midday.
- After I alighted from the plane, I took a taxi and checked in at Pacific
Hotel. In the afternoon I went travelling around places near my hotel.
- On the 4th Dec 2002, I went to the “Lucky Burger” restaurant
at 3 pm as directed by “Sun” to wait for someone. I waited
for about half an hour there and a male Cambodian approached me. He told
me to follow him and I did so. He led me to his car and took me somewhere.
A man who could speak Vietnamese showed up. He told me to smoke heroin.
I refused. He yelled at me but I did not understand what he was shouting
about. He then threatened me by saying, “smoke! Or else …”.
I was under fear and so I had to smoke heroin.
- The statement of 15 December reads:
The statement recorded on 13.12.2002 @ 4.05 pm. Paragraph 1 to Paragraph 8
was read back to me in English and I affirmed it to be true and correct.
- I am now referred to paragraph 8 of my earlier statement. I
was then inside a garage shed. There were altogether 3 people there including
the man who brought me there. I had never seen them before. The man who
spoke Vietnamese did not tell me his name nor did he identify himself in
any way. They already had the equipment for consuming heroin prepared on
a table. There were an aluminium foil and a rolled-up Cambodian note. The
man who brought me there took out from his pocket a plastic containing heroin
and a lighter and placed them on the table. He then offered the heroin to
me to consume. I hesitated and refused. I got aggressive and told him no.
That was when the man who spoke Vietnamese stood up and told me in partial
Vietnamese and partial Cambodian language, “f— your mother,
smoke or die”. That was when I realised he had a rod in his hand as
he hit it hard on a bench. I then knew that I could be killed if I do not
follow what they told me to do.
- I asked the man who spoke Vietnamese how he wanted me to smoke. He then
talked to the man who brought me there to prepare for me and he just told
me to inhale the smoke using the rollup note. The man who brought me there
then poured the heroin onto the aluminium foil and by using a lighter, he
heated the foil from below. When the heroin was heated, smoke was emitted
and that was when he told me to inhale the smoke using the rolled-up note.
- I inhaled the smoke for about 3 to 4 times and then I started to fall
sick and vomited. After sometime, I vaguely remembered that I was brought
back to the side street of my hotel and dropped off by these people. I went
back to my room. I took a shower and fell asleep until the next day.
- The next day, 5 Dec 2002, I woke up at around 6 am. I went around with
a man who I had met on the day I arrived at Phnom Penh. I knew him as “Anh”
and I cannot remember his contact number. We met him at the airport while
I was walking out. I was then surrounded by illegal taxi drivers. I asked
for a taxi driver and that was how I got to know “Anh” who was
one of the illegal taxi-drivers. “Anh” had nothing to do with
this case. During my stay at Phnom Penh he took good care of me.
- At about 3 pm, I went back to “Lucky Burger” restaurant and
the same thing happened again. The same Cambodia man came to pick me up
and we went to the same garage and I was asked to smoke heroin again. This
time I did not put up any resistant and I smoked the heroin as I was told.
I only inhaled the heroin smoke three times. There was a lot of talking
between the Cambodian man and the man who spoke some Vietnamese for some
- The Vietnamese speaking man told me to take off my shirt. I asked him
why and he told me just take it off. I then took off my shirt. He then took
out 2 blocks of substance wrapped in tapes. I did not know what they contained
at that point in time. He then took the 2 blocks and placed them on my back.
I asked him why he was doing that. He told me that someone would come to
see me and prepare everything for me in that manner on the 10 Dec 02. He
also told me that that was how the 2 blocks would be positioned and this
is the way I was going to bring the package back to Melbourne. I was told
to be at “Lucky Burger” at 4 pm on the 10 Dec 02. I then asked
what were going to happen between then and the time that someone would meet
me. He said, be quiet and keep out of trouble while you were in Phnom Penh.
I was then escorted back to my hotel.
- Back in my hotel room, I decided to go to Vietnam to get away from Phnom
Penh. I was too stressed to remain at Phnom Penh. I then went on to make
arrangements to travel to Ho Chi Ming City, Vietnam, on the 8 Dec 02. While
waiting to leave for Ho Chi Ming, from 5 Dec 02 to 8 Dec 02. I travelled
around the city, do some shopping. I also paid some prostitutes for their
companionship. I did not have sex with them.
- On the 7 Dec 02 in the afternoon around 2 pm, I hired a car and it took
me to Vietnam. I arrived at the border at about 6 pm. I could not cross
over to Vietnam because I was late and the border was already closed. I
stayed there at a casino hotel overnight. At about 6.30 am on the 8 Dec
02, I woke up and got ready. At about 7 am, I arrived at the border gate
and this time, I managed to cross the border.
- At about 9 am on the same day, I reached Ho Chi Ming. I spent the rest
of the day sightseeing around the city. I checked in a hotel, I cannot recall
the name, and stayed there over night.
- On the 9 Dec 02, I spent the whole day in Ho Chi Ming again. On the 10
Dec 02, I returned to Phnom Penh and arrived at Pacific Hotel in the evening.
I was late for the 4 pm appointment at “Lucky Burger”. I decided
not to go to “Lucky Burger” restaurant. I went back to my hotel
- The next day, on the 11 Dec 02 at about 3 pm, I went to “Lucky
Burger” restaurant. I went there hoping that they would be there.
At about 4 pm, the same person who came to pick me up during the first 2
occasions appeared. Again, he asked me to follow him in his car. We arrived
at the same garage.
- At the garage, the man who spoke Vietnamese started scolding me. He asked
me if I was a cop or a policeman. I was then stripped and searched. Again,
they asked me to smoke heroin. I explained to them it was not a good idea
to consume drug before travelling from countries to countries. They accepted
that and did not force me any further. They then passed a bag containing
a sealer, rolls of plastic, scissors, gloves, Velcro tapes, super glue,
handy-knives and some other accessories. There was also an electric coffee
- The Vietnamese speaking man then instructed me to crush the 2 rocks of
heroin using the coffee blender into fine powdery form. As he explained,
the man who brought me there brought out 2 rocks of heroin. They are rectangular
in shape and white in colour. Each rock was contained inside a plastic bag.
The Vietnamese speaking man told me that the person who was supposed to
help me strapped the package was gone somewhere else. I told him that he
was supposed to solve that problem. That was when I was threatened not to
mess things up. No more things were said. He then told me that I would have
to strap the package on my own. He told me first to crush both the rock
of heroin separately using the coffee blender. He also reminded me not to
mix the 2 rocks of heroin at any time. Then I was to seal them inside 2
plastic bags using those things they gave me inside the bag. He then told
me to strap the 2 plastic packets of powdered heroin onto my back. He then
handed over the bag and warned me not to back out or chicken out again.
I asked him if he were sure that the 2 plastic packets of heroin to be strapped
to my back and he again warned me not to mess it up as someone would be
watching over me.
- After collecting the 2 rocks of heroin and the bag containing all the
tools, I was sent back to my hotel room. When I reached my room, I went
left everything inside my room and went to a shop nearby to buy a hammer
and a power adapter. The hammer is for breaking the heroin rock into smaller
bits so that they could be fitted into the coffee blender. The power adapter
is to connect the sealer to a PowerPoint. Then I returned to my hotel room
and started preparing the crushing of the rock heroin.
- The statement of 16 December reads:
The statement recorded on 15.12.2002 @ 3.50 p.m. Paragraph 9 to Paragraph
22 was read back to me in English and I affirmed it to be true and correct.
- At my hotel room, I took out everything from the bag. I planned
in what process I would do to package the two rocks of heroin. I decided
that some of the equipment could be used while some could not be used and
I separate them apart. I took out one rock of heroin and placed it into
a plastic bag and started to break it into smaller pieces using the hammer.
It took about an hour or so. After that I placed all the smaller bits into
the coffee blender portion by portion. That took about an hour also. Then
I poured all the powderise heroin onto a plastic and sealed the plastic
using the sealer. I repeated the same process for the second rock of heroin.
At the end of that, I had 2 sealed plastic containing powderise heroin.
I tried to packed the 2 plastic as slim as possible. But I did not really
know how to go about doing that, so I just did what I thought would work.
I also realized there were still some small rocks still not powderise. I
did not bother to re-do as I was tired to repeat the process again.
- I then rested and thought of how to strap the 2 plastic package onto
my back. I realized that I needed sticky tapes to do it. There was no sticky
tapes found inside the bag which the Vietnamese speaking man gave me. There
was only a Velcro tape that I was not sure how they wanted me to do it.
At about 10 am on the 12 Dec 02, I went to purchase sticky tapes from a
shop around the corner near the hotel. I returned after buying 2 types of
tapes. One roll is yellow in colour and the other roll is white in color.
I am shown tapes seized from my back and I recognized them as the tapes
which I bought from the shop near the hotel. (Recorder’s note: Accused
was shown Exhibit A1, tapes removed from the plastic packet of heroin used
to strap to the accused back)
- Then I returned to my hotel room and started to strap the 2 plastic packets
onto my back. However, I could only managed to strap one plastic packet
around my lower back using the yellow tapes that I just bought. The second
plastic packet I was unable to reach my upper back on my own. I decided
to strap it around my abdomen. I then used the remaining yellow tapes and
the white color tapes to secure the 2 plastic packets around my lower back
and my abdomen as tight as I could. I then wore my under-garment and also
put on my clothing.
- On the same day, 12 Dec 2002, at about 11 am, I carried my luggage and
went downstairs and checked out of the hotel. I reached the airport at about
11.45 am. At the airport twice the security officers there checked me. However
they did not discover the 2 packets of heroin strapped on my body. I boarded
Silkair flight, MI 622, heading for Singapore at 12.20 pm.
- During my flight, I started to have difficulties in breathing. I then
went to the toilet and removed the package that was strapped to my abdomen.
I then placed it into my pants and tugged out my shirt so that it was not
obvious to be seen.
- I went back to my seat and secretly stuffed the package that I took off
in the toilet into my back pack. I am now shown a “Haglogs”
backpack and I confirmed that this was the backpack which I put the package
of heroin into. (Recorder’s note: Accused was shown Exhibit B, a black
- On the same day at about 3.20 pm, I arrived at Changi International Airport
Terminal 2 in Singapore. I went to the duty free shop at Terminal 2 and
bought a carton of Marlboro Menthol Lights cigarettes. I then went to the
smoking room and smoked a cigarette. Then I went took the skytrain to Terminal
1 as I was instructed by the information counter that my flight back to
Melbourne was at Terminal 1.
- At Terminal 1, I bought a $10/- international calling card from the money
exchange counter. Then I went to a counter where I collected my boarding
pass. I then went straight to the Qantas business class lounge and called
my girlfriend, Ameara. I used the phone in the lounge to call my calling
card which will connect me to Australia. I spoke to her for about 25 minutes.
I merely chitchatted with her and I did not mention anything about this
case to her. She was not aware anything pertaining to this trip which I
made to courier heroin back to Melbourne. In fact I did not inform any of
my friends or relatives about the purpose of this trip.
- After I hanged the phone, I then went to the shower room to have a look
at my packages. I removed the tapes that were still stuck on the plastic
packet that was hidden inside my backpack. I threw the tapes into a rubbish
bin inside the shower room. I then place this plastic packet of heroin into
the back compartment of the backpack. I did not do anything to the plastic
packet of heroin that was strapped to my lower back.
- After that I went back to the lounge and slept. I woke up at about 7.30
pm and my flight was at 7.40 pm. My flight number was QF 10. I thought that
I was late and so I run to gate C22 from the lounge. I took about 5 minutes
to run to Gate C22.
- At the gate C22, I took a good glance to see if anyone was watching.
I was looking for the drug syndicate people to see if anyone was really
watching over me. However I was not able to tell if I was being watched.
So I decided that it was too late to turn back. I was also worried about
the safety of my family members as the people in Phnom Penh warned me that
the syndicate knew where I lived and warned me not to messed up. I knew
that they were implying should I messed it up, they will be looking for
me at my house or my family members in Melbourne. I had no choice but to
deliver the 2 packets of heroin to someone in Australia.
- At the metal detector, I placed my backpack and my business bag onto
the x-ray machine. Then I walked through the metal detector and as I was
crossing, it beeped. At that point in time, I knew I was going to be caught.
A police woman told me stand one side so as not to obstruct traffic. She
then used a metal detector wand to search me by going up and down my body.
The metal detector wand did not beep. She then touched my back, either using
her hand or the metal detector wand, and when she reached my lower back,
she must have discovered the packet of heroin strapped there. She asked
me, “what is this?” I shook my head and said, “No”.
She then asked a male colleague to bring me to a room to search me. I requested
to bring the backpack and business bag to the room as well, which she allowed.
- Inside the room, the male officer asked me to put my hands on the wall.
I told him, “no need, I will get it for you.” I lifted up my
shirt and pulled out the strapped packet on my lower back and gave it to
the officer. He asked me what that was and I replied to him, “It’s
heroin, sir”. He asked me if I was sure. I told him of course. I also
told him that there was more and I went on to retrieve the packet of heroin
which I had hidden inside my backpack.
- I waited inside the room. I was lost in thought at that time. Later a
few plain clothes officers came questioned me. They also brought me to another
room inside the airport and asked me more questions. One of the officers
asked me how much I was being paid and I replied I did not know. He also
asked me who I was working for and I said the person I was working for was
“sun” and I met him in Sydney. I could not remember the other
questions that were posed to me. Later I was brought to another place where
I was subjected to a urine test. I was informed that my urine was tested
negative. I was surprised that the result was negative. I did not know how
long the heroin would stay in my body. After that I was referred to the
- There was a phone number which I could recall being used by the syndicate
on the day that I left Sydney for Singapore. That was on the 3 Dec 02 while
I was at Pacific International Hotel in Sydney. I called them at this number
and they told me to listen to the message. Then I received a message on
my handphone. I could not remember if it was the Nokia Handphone or the
Siemens handphone. The message stated, “Checked out now.” The
number is 04-14135379. It is a handphone number as it starts with 04. I
do not know who was the owner of that mobile number of handphone. However
it must be connected to “Sun”. Beside this number, all the other
numbers stored inside the two handphones that were seized from me were my
friends and they have nothing to do with this case.
- The Sony laptop that was seized from me belonged to my good friend whom
I knew as “Berri”. He is an Indonesian, aged about 20 years
old. He is currently studying in Melbourne. I do not know his real name
as it was too long to remember and too complicated to pronounce. Berri has
no criminal records. I borrowed the laptop from him on the 1 Dec 02 just
before I left for Sydney to keep myself entertained while I was on this
trip. I also wanted to use it to write letters. I did not use it to record
any event that was connected to this case.
- There were a total of 9 watches found in my luggage. Only one is genuine
and that is the black-colour man “Rado” watch which I bought
it at A$2,500 back in Melbourne. I used my savings to purchase it on my
21 birthday about 1 year and 3 months ago. The other 8 fake watches were
bought in Phnom Penh on 6 Dec 02. I intended to give them to my friends
in Australia as Christmas gifts. The 10 belts found inside my luggage were
for the same purpose. They cost about A$500/- and I used my own savings
to buy them.
- The amount of cash that were recovered from me comprised of Cambodia,
Vietnam, Australia, Singapore and US currency. The total value would not
exceed A$100/-. These were left over from the US$1000/- given to me by “Sun”.
“Sun” gave me US$1000 for my hotel, food, transport and entertainment
expenses for my trip. He handed the money together with the air tickets
before I left Sydney for Singapore on the 2 Dec 2002.
- I was born in Thailand, Sonkha, in a refugee camp in 1980. My mother
was a Vietnamese refugee. I did not know who my father was until Nov this
year. He came from America to look for my brother and I. I had a twin brother
and no other sibling. Shortly after I was born, I followed my mother together
with my twin brother and migrated to Australia. I cannot remember much about
my childhood. My mother married in 1987 to a Vietnamese Australian. My step-father
beat my brother and I quite often. I went to St Joseph Primary School in
Springvale, Melbourne when I was about 6 years old. When I was 12 years
old, I went to the Mt Waverly Secondary College. I completed secondary school
education in 1998 when I was about 18 years old. Then I intended to proceed
with my university education at Deakin University. However due to financial
difficulties, I started working instead of studying. I worked as storeman,
door to door salesman, computer sales and research marketing. Around end
1999, I also set up my own business in Melbourne dealing with computer sales.
There was no need for any capital. Shortly after that my twin brother got
into trouble with the law and I wind up my business to raise legal fees
for him. So I found a sale, research and marketing job and I earned between
A$1500 to A$2500 a month depending on how much commission I received. I
took long leave since June this year as I was on medication for acne that
required 4 months leave.
- Finally, the statement of 19 December read:
The statement recorded on 16.12.2002 @ 2.22 pm. Paragraph 23 to Paragraph
41 was read back to me in English and I affirmed it to be true and correct.
- I am now refer to paragraph 4 of my earlier statement. I wish
to state that “Tan” were someone whom I often see him hanging
around a café called “Puccini” located in the city of
Melbourne. I had seen him around in that café since 2 years ago.
However, we were mere acquaintance. I do not know his contact number or
where he stayed. He knew I needed money urgently as I had spoken to him
about. That was why he called me sometime in early November 2002. When “Tan”
ask me if I am sure I would do something, he meant that if there was an
opportunity would I go for it. At that time I was totally not aware of the
nature of that opportunity. At hindsight, “Tan” is acquainted
with “Sun”. I am not sure if he knew about the assignment that
“Sun” had in store for me.
- I am referred to my statement recorded on the 13 Dec 2002 at 4.27 am.
I wish to clarify that I mean that I would be telling all that I knew about
what happened but the information would not be the truth as these were being
fabricated by the people who had organized this.
- During transit in Singapore on the day I flew from Sydney, I met up a
friend from Singapore at about 4 am on 3 Dec 2002. I only knew him as “Golgan”.
I knew him in Australia where was studying in Melbourne. He can be contacted
at 65-92388851. We met at Terminal Two at the exit of the arrival hall.
We were together for about 2 hours until I had to check in again. I told
him that I was on holidays around the world. I did not tell him anything
about my assignment to courier heroin back to Australia. He had nothing
to do with this case.
- I am now referred to paragraph 33 of my earlier statement. I wish to
add that I did not know what the syndicate would do to harm my family or
myself. I knew for sure that they would be doing something nasty to my family
member or myself. Under this circumstance, I really had no choice but to
bring the heroin back to Australia to hand over to the syndicate people.
If I did not do that, the syndicate people might think that I had chickened
out or had cheated them of their goods. It is common that the syndicate
would think that way.
- That is all I had to say.
- Counsel for the accused acknowledged that no inducement, threat
or promise was employed or held out when the four statements were recorded.
If the statements had been affected by inducement, threat or promise, they
would be inadmissible whether or not they are confessions.
- Moving on from there, the next issue is whether the statements should be
read separately or together, to determine whether they are a confession. Where
two statements, A and B, are recorded in the course of investigations, they
may be taken to be one statement in two parts or two separate statements.
They will be treated as one complete statement where statement B is a follow-up
on statement A. Where they are not connected, and relate to different matters,
eg where statement A relates to a charge of drug trafficking, and statement
B relates to a charge of illegal entry into Singapore, they may be treated
as separate statements.
- Looking at the four investigation statements, it can be seen that
they narrated the events from before the time the accused came to be in the
possession of the two packets of heroin to the time of his arrest and each
succeeding statement was recorded as a continuation of the preceding one,
after the previous statement had been read back to him, with the paragraphs
- The statements are to be treated as one whole statement for deciding whether
it is a confession under s 17(2) of the Evidence Act. On that basis, it is
quite clear that it has all the ingredients of a confession, and is admissible
under s 24.
Admissibility of the directive
- Defence counsel objected to the admission of the statements
on a further ground, that the statements were taken in breach of Art 36(1)
of the Vienna Convention on Consular Relations 1963 (“VCCR”).
It was submitted that the breach amounted to an illegality and operated unfairly
against the accused as he was not advised of his rights and did not have the
opportunity to consult with a consular officer until 3.30pm on 13 December,
after the cautioned statement was recorded, but before any of the investigation
statements were taken. Article 36(1) reads:
With a view to facilitating the exercise of consular functions relating
to nationals of the sending State:
- consular officers shall be free to communicate with nationals of
the sending State and to have access to them. Nationals of the sending
State shall have the same freedom with respect to communication with
and access to consular officers of the sending State;
- if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State
if, within its consular district, a national of that State is arrested
or committed to prison or to custody pending trial or is detained in
any other manner. Any communication addressed to the consular post by
the person arrested, in prison, custody or detention shall also be forwarded
by the said authorities without delay. The said authorities shall inform
the person concerned without delay of his rights under this subparagraph;
- consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation. They
shall also have the right to visit any national of the sending State
who is in prison, custody or detention in their district in pursuance
of a judgment. Nevertheless, consular officers shall refrain from taking
action on behalf of a national who is in prison, custody or detention
if he expressly opposes such action.
- Although Singapore is not a signatory to the Convention, it was
contended that the VCCR applies to Singapore because it is customary international
- The Prosecution’s reply can be summarised as:
(a) there was no breach of Art 36;
(b) even if there was, the breach does not entitle the Defence
to challenge the admissibility of the statements; and
(c) Singapore is not a party to the VCCR.
It is silent on whether Art 36(1) is customary international law which applies
- The VCCR is a key instrument in the regulation and conduct of consular
activities. As at 1 January 2000, at least 167 countries were parties to the
convention. Luke T Lee in his book Consular Law and Practice (2nd Ed, 1991)
stated at 26:
[T]he conclusion of the Vienna Convention on Consular Relations
in 1963 was undoubtedly the single most important event in the entire history
of the consular institution. Indeed, after 1963, there can be no settlement
of consular disputes or regulation of consular relations, whether by treaties
or national legislation, without reference or recourse to the Vienna Convention.
- There is an established practice for a state which has arrested a national
of another state to notify the consular officers of the state of the accused
person. Singapore subscribes to the practice. ASP Toh had notified the Australian
High Commission of the arrest of the accused person in compliance with a directive.
- The directive, which is a part of the standard operation procedures of
the CNB, reads:
3 Where a foreign national (hereinafter referred to as the accused) is arrested
for other drug offences, the following procedure should be followed:
It is reasonable to infer that the other law enforcement agencies in Singapore
would have similar directives.
- The Investigation Officer (IO) is to verify the nationality
of the accused and his current immigration status;
- The IO is to carry out the preliminary investigation (ie,
conducting instant urine test, statement taking, etc);
- The Head Sector is to inform the resident or non-resident
foreign mission concerned, (See sample at Annex B) giving details of the
accused (full name, date of birth, passport number), date, place and time
of arrest, charges preferred and trial date or place of remand (where
- Singapore holds herself out as a responsible member of the international
community and conforms with the prevailing norms of the conduct between states.
Specifically, the directive suggests the acceptance of the obligations set
out in Art 36(1).
- All this leads me to agree with the defence counsel that Art 36(1) applies
in Singapore. The Prosecution, which is in a good position to have knowledge
of Singapore’s position on this issue, did not assert the contrary.
- Was there a breach of Art 36(1)? It was established that a member of the
Australian High Commission saw the accused at about 3.30pm on 13 December.
The CNB took charge of the investigations at 9.10pm on 12 December, 18hrs
40min before the member of the High Commission met the accused. If one takes
the effective starting time as 7.45pm, when the accused was detained by the
airport police, the elapsed time was 20hrs 5min. The High Commission must
have been notified before 3.30pm, for an official to be instructed, and for
him or her to go and see the accused, but no evidence was led to the time
of notification. For the present purpose, I will round off the time between
arrest and notification to 20 hours.
- Article 36(1) does not set a time period for notification; it is to be
done without delay. Is 20 hours a delay? Reference to state practice can be
helpful. By an Agreement on Consular Relations between Australia and the People’s
Republic of China which came into force on 15 September 2000, notification
is to be made within three days. As Australia regards three days an appropriate
period under the agreement, there is little basis to suppose that it would
find the 20 hours in this case unacceptable. It was not the defence case that
the Australian government considers the notification to have been delayed
in this case.
- The Defence referred to the case of LaGrand (Germany v USA) (27 June 2001)
ICJ General List No 104. This is a decision by the International Court of
Justice where two accused persons were not informed of the right to consular
access for almost 17 years after their arrest. This decision does not offer
any assistance to the accused. The acceptable time was not considered by the
Court as the United States accepted that there was a breach of Art 36(1).
- The Defence has therefore failed to make out a case that there was a breach
of Art 36(1) because of the 20-hour interval. But I will go one stage further.
Assuming that there was a breach, it does not necessarily follow that the
accused’s statements are inadmissible in evidence. There must be some
resultant prejudice that renders it wrong for the statements to be used, for
example, that if he had timely consular advice, he would not have made the
statements at all, or in the form or at the times he did.
- No prejudice was disclosed. The issue relating to Art 36(1) was not raised
when the admissibility of the statements was argued, but was only brought
up in the closing submissions. The accused did not say anything about the
making of the statements and the consular visit. There is no basis for excluding
the statements as evidence.
Chain of custody
- Before concluding this part of my judgment, I should address
an issue relating to the directive. ASP Toh’s evidence was that he acted
pursuant to the directive. When defence counsel applied for it to be produced
and admitted in evidence, the prosecutor objected.
- He relied on s 126(1) of the Evidence Act that:
No public officer shall be compelled to disclose communications made to him
in official confidence when he considers that the public interest would suffer
by the disclosure.
and argued that the directive was restricted information given to ASP Toh
and other CNB officers.
- He had not given proper attention to the second element of the provision,
that the public interest would suffer by the disclosure. ASP Toh had not said
that the disclosure of the directive was inimical to the public interest,
and I saw no reason to suppose that it would.
- I therefore ruled that the directive be produced and admitted in evidence.
Finding on the accused’s guilt
- Defence counsel raised an issue on the chain of custody of the
two packets of heroin. This relates to the time when the packets came into
ASP Toh’s custody at 12.50am on 13 December up to the time that he submitted
them to Dr Lee Tong Kooi of the Health Sciences Authority (“HSA”)
for analysis on 13 December at 11.40am.
- ASP Toh’s evidence in his conditioned statement was that he marked
the packet that was strapped to the accused’s back “A”,
and the other packet recovered from the haversack “B1”. At 1.55am
on 13 December he weighed the two packets and recorded their weights as 381.66g
for packet A and 380.36g for packet B1, and at 5.30am he locked the two packets
in his cabinet and left for home. On the following day, 13 December, at 11.00am
he took out the two packets again and sealed them before delivering them to
the HSA for analysis.
- When he was cross-examined by defence counsel, he agreed with counsel that
the established practice is for drug exhibits to be sealed at the earliest
possible time. He explained that he did not do that immediately after weighing
the packets because there was to be a press conference. That explanation was
corrected in re-examination when he said that there was no press conference,
only a press release.
- He also said that on the morning of 13 December after he locked the packets
in his cabinet, he took them out, and locked them again before he left for
home, but he cannot remember why he took them out.  He had kept the packets
in his cabinet that night because the CNB store for drug exhibits is only
open during office hours, and does not receive drugs during the night.
- His evidence was that the previous occasion he had kept drugs in the cabinet
was in July 2002, and those drugs were no longer kept there in December. After
December no drugs were kept there till May 2003. 
- ASP Toh was also asked about the discrepancy between the weights he recorded
of the two packets (381.66g for packet A and 380.36g for packet B1) and that
recorded by Dr Lee Tong Kooi (361.64g for packet A and 370.94g for packet
B1). The significance was not only that different weights were recorded by
ASP Toh and Dr Lee for the same packets, but that packet A was the heavier
packet by ASP Toh’s weighing, while packet B1 was heavier than packet
A when Dr Lee weighed them.
- No explanation was offered by ASP Toh. One can only look at the circumstances
of the two weighings. ASP Toh weighed the packets in his office to obtain
a weight of the suspected drugs to prefer a holding charge against the accused,
and to carry on with his investigations.
- When Dr Lee weighed the exhibits he was doing that as an analyst. The weighing
was done under laboratory conditions to establish the diamorphine content
of the suspected drugs. The levels of expertise between ASP Toh and Dr Lee,
and the equipment they used, were different. The difference in the results
may have arisen for these reasons. There was no suggestion that when ASP Toh
opened the packets, he added to or removed anything from them before sending
them to Dr Lee.
- The Defence also complained that ASP Toh did not seal the drugs promptly.
The two packets came into ASP Toh’s possession at 12.50am on 13 December
and he sealed them at 11.00am the same day. The lapse was 10hrs 10min. During
that time ASP Toh was briefed by the officer who handed custody of the case
exhibits to him, and he instructed the officer to list the exhibits, and he
also weighed the packets and locked them in his cabinet.
- The sealing could have been carried out earlier, perhaps immediately after
the weighing at 1.55am, 9hrs 5min earlier than the actual time of weighing.
- ASP Toh made reference to a press conference which did not take place.
The Prosecution did not clarify with him whether he believed that there was
going to be a press conference, and whether there is a practice that if there
is a press conference, drug exhibits are not sealed until after that has taken
place. There was no suggestion that anyone other than ASP Toh had possession
of the packets during the 10hrs 10min.
- Defence counsel submitted that:
The procedure to ensure the integrity of the exhibits submitted for analysis
would be rendered useless if investigators are allowed to keep unsealed drugs
in their private cabinets, remove them for no apparent reason and then affixing
a seal just minutes before submitting the drugs for analysis. The evidence
adduced showed not only a disregard of established practice but also an unexplained
discrepancy in the weight of the exhibits. We submit the Honourable Court
is entitled to reject the drug exhibits and the consequential evidence of
the drug analyst. 
- I do not agree. For the reasons I have stated I find that the integrity
of the exhibits was not compromised.
Sentence to be imposed
- There was undisputed evidence that the two packets were in the
possession of the accused. The airport officers gave clear evidence on the
recovery of those packets from his body and his haversack. He had also admitted
in his statements that he had those packets in his possession. There was also
undisputed evidence from other prosecution witnesses that he had flown in
from Phnom Penh. In his statement he admitted that he brought the two packets
with him when he entered Singapore.
- At the close of the Prosecution’s case, defence counsel decided not
to make any submissions. I found on the evidence before me that the Prosecution
had proved a sufficient case for the accused to enter his defence.
- When he was called to do that, he elected not to enter his defence. He
did not give evidence himself, or call any one to give evidence as his witness.
- I proceeded to hear closing submissions. I have reviewed the evidence and
the submissions and my rulings and findings made during the trial since. I
find that the Prosecution has proved its case against the accused beyond a
reasonable doubt. I therefore find the accused guilty on the charge he faces,
and convict him thereon.
Whether the death sentence is mandatory
- I will now deal with the issues raised by the Defence on the sentence to
- The Defence contended that the sentence of death is not a mandatory
sentence and that it is the maximum sentence.
- The punishments for offences are referred to in s 33 and the Second Schedule
of the Misuse of Drugs Act. The first column of the schedule relates to “Section
creating offence”, the second column relates to “General nature
of offence” and the third to seventh columns relate to “Punishment”.
- To ascertain the punishment for the offence committed by the accused one
looks under the first column for s 7. Then one looks across the schedule for
the specific offence or type and quantity of drug involved under the second
column, and finally one looks for the punishment under columns three to seven.
- When the second schedule is read in this way, the punishment for an offence
under s 7 for the unauthorised import of more than 15g of diamorphine is stated
in one word, “Death”.
- It was submitted that this “as a matter of statutory interpretation,
is open to be regarded as a maximum penalty not a death penalty”. Reliance
is placed on ss 9A(1) and 41 of the Interpretation Act (Cap 1, 2002 Rev Ed):
9A.—(1) In the interpretation of a provision of a
written law, an interpretation that would promote the purpose or object underlying
the written law (whether that purpose or object is expressly stated in the
written law or not) shall be preferred to an interpretation that would not
promote that purpose or object.
41. Whenever in any written law a penalty is provided for
an offence, such provision shall imply that such offence shall be punishable
upon conviction by a penalty not exceeding (except as may be otherwise expressly
mentioned in the written law) the penalty provided.
- I do not see any merit in this argument. The schedule provides specifically
and clearly that the punishment is death. It does not say that the maximum
sentence is death. The schedule provides for the maximum sentence in clear
terms. It is replete with references to maximum and minimum sentences for
other offences, for example, for the offence of unauthorised import of not
less than 10g and not more than 15g of diamorphine, the punishment is maximum
30 years’ imprisonment or imprisonment for life and 15 strokes, and
minimum 20 years’ imprisonment and 15 strokes.
- When there is a range of punishment prescribed, there is a maximum and
a minimum sentence. When a single punishment is prescribed, it is manifestly
wrong to take it to be the maximum sentence.
Separation of powers
- A more substantial issue raised on behalf of the accused is
that the mandatory death penalty is unconstitutional for contravening Art
12(1) of the Constitution (1999 Rev Ed) that “[a]ll persons are equal
before the law and entitled to the equal protection of the law”.
- Counsel submitted that:
Where persons require the equality of protection that is there referred to,
it usually is from injustice at the hands of the State and usually within
the criminal law. Any State has great resources which can be marshaled against
an individual person. Every person is entitled to protection from the effect
of those resources and in communities such as this, that protection comes
from the criminal justice system. Justice in the criminal law in countries
whose system derives from English law usually means fairness and equity. It
may mean moral rightness. Justice is also usually required to conform to developing
community standards. An entitlement to equal protection of the law is not
concerned in comparative terms with the punishment which is imposed on a particular
individual but rather an entitlement to be protected from injustice in the
form of a disproportionate sentence.
A mandatory sentence of death, such as in this case, removes that protection.
The person in the situation of the accused who falls into the 15 grams plus
category loses the protection of a judicial sentence and the fact that everyone
in that category is penalized with the death penalty is no answer to the absence
of protection from a disproportionate sentence. 
- The constitutionality of the mandatory death sentence under the Misuse
of Drugs Act was argued before and considered by the Privy Council two decades
ago in Ong Ah Chuan v PP [1980–1981] SLR 48.
- The argument made, as Lord Diplock put it in his judgment at 63,  was:
[T]he mandatory nature of the sentence, in the case of an offence so broadly
drawn as that of trafficking created by … the [Misuse of] Drugs Act,
rendered it arbitrary since it debarred the court in punishing offenders from
discriminating between them according to their individual blameworthiness.
and that it:
… offends against the principle of equality before the law entrenched
in the Constitution by art 12 (1), since it compels the court to condemn to
the highest penalty of death an addict who has gratuitously supplied an addict
friend with 15g of heroin from his own private store, and to inflict a lesser
punishment upon a professional dealer caught selling for distribution to many
addicts a total of 14.99g.
- That argument was rejected at 64, – on the ground that:
All criminal law involves the classification of individuals for the purposes
of punishment, since it affects those individuals only in relation to whom
there exists a defined set of circumstances – the conduct and, where
relevant, the state of mind that constitute the ingredients of an offence.
Equality before the law and equal protection of the law require that like
should be compared with like. What Article 12(1) of the Constitution assures
to the individual is the right to equal treatment with other individuals in
similar circumstances. It prohibits laws which require that some individuals
within a single class should be treated by way of punishment more harshly
than others, it does not forbid discrimination in punitive treatment between
one class of individuals and another class in relation to which there is some
difference in the circumstances of the offence that has been committed.
The discrimination that the appellants challenge in the instant cases is discrimination
between class and class: the imposition of a capital penalty upon that class
of individuals who traffic in 15g of heroin or more and the imposition of
a penalty, severe though it may be, which is not capital upon that class of
individuals who traffic in less than 15g of heroin. The dissimilarity in circumstances
between the two classes of individuals lies in the quantity of the drug that
was involved in the offence.
The questions whether this dissimilarity in circumstances justifies any differentiation
in the punishments imposed upon individuals who fall within one class and
those who fall within the other, and, if so, what are the appropriate punishments
for each class, are questions of social policy. Under the Constitution, which
is based on the separation of powers, these are questions which it is the
function of the legislature to decide, not that of the judiciary. Provided
that the factor which the legislature adopts as constituting the dissimilarity
in circumstances is not purely arbitrary but bears a reasonable relation to
the social object of the law, there is no inconsistency with art 12(1) of
and Lord Diplock added at 65, :
[A]rt 12(1) of the Constitution is not concerned with equal punitive treatment
for equal moral blameworthiness; it is concerned with equal punitive treatment
for similar legal guilt.
This decision is binding on me.
- The Court of Appeal ruled in Jabar v PP  1 SLR 617 at 631, ,
in connection with the requirement in Art 9(1) that no person shall be deprived
of his life or personal liberty except according to procedure established
by law, that:
Any law which provides for the deprivation of a person’s life or personal
liberty, is valid and binding so long as it is validly passed by Parliament.
The court is not concerned with whether it is also fair, just and reasonable
There is room for debate whether “so long as it is validly passed by
Parliament” refers to the compliance with the processes for passing
an Act or to its constitutional validity. I think it relates to both, as the
court must be concerned that statutes be properly enacted and do not contravene
- In Kok Hoong Tan Dennis v PP  1 SLR 123, Yong Pung How CJ adopted
the test laid down by the Supreme Court of India in Budhan Choudhry v State
of Bihar AIR (42) 1955 SC 191 at 193 for the equal protection of the law under
Art 14 of the Constitution of India:
In order, however, to pass the test of permissible classification two conditions
must be fulfilled, namely, (i) that the classification must be founded on
an intelligible differentia which distinguishes persons or things that are
grouped together from others left out of the group and (ii) that that differentia
must have a rational relation to the object sought to be achieved by the statute
in question. The classification may be founded on different bases; namely,
geographical, or according to objects or occupations or the like. What is
necessary is that there must be a nexus between the basis of classification
and the object of the Act under consideration.
- In their closing submissions defence counsel referred to Ong Ah Chuan and
There is no question that Lord Diplock is right when he says that the legislature
can differentiate between offenders as to the punishment to be imposed. However
in our submission what the legislature cannot do (under Article 12) is deprive
any group of persons of the protection of the law by depriving them of the
right to be heard on the question of sentence which is then decided by an
independent judge. 
- Counsel argued:
It is instructive to deal with two hypothetical situations to illustrate our
submissions. In the first case (similar to this) a young person is arrested
in the transit section of Changi Airport in possession of 20 grams of heroin
on his way home to New Zealand. The 20 grams of heroin are for his own consumption.
He is without prior convictions, fully employed, of excellent character and
supported in every way by his family. In the second case, a Singapore national
is arrested at the same airport. His baggage is searched and a suitcase containing
artefacts purchased in the Golden Triangle shows that a carefully planned
scheme of importation of heroin had been devised. The artefacts have been
carefully hollowed, filled with heroin and resealed, and in total he is in
possession 1.5 kilograms of heroin. He is interviewed by the CNB and admits
that the primary purpose for the importation is the sale of the heroin after
being cut on the streets of Singapore. He has prior convictions for noncapital
drug offences, offences of violence, and immigration offences including forgery
of travel documents. It is clear that he is part of a sophisticated drug network
dealing in large quantities of drugs within Singapore.
To suggest that no differentiation in punishment between those two offenders
does not violate the principles behind the equal protection of the law in
Article 12 or the accepted principle of sentencing is fanciful. 
- The argument is that the death sentence cannot be imposed without regard
to the degree of moral blameworthiness of the convicted person, and that the
court must treat an offender with little or no blameworthiness differently
from a blameworthy offender when it imposes a sentence.
- As Lord Diplock explained, equal protection does not require that everyone
be dealt with equally. It requires that like be compared with like. Different
bases of classification may be employed. In setting punishments for drug importation,
for example, the criteria employed may be by the offence, the type of drugs,
the quantity of the drugs, the value of the drugs, whether the offender is
a willing or reluctant participant, a principal or an agent, or whether he
is a first offender or a repeat offender. The power to determine the criteria
for identifying and distinguishing one class from others is vested in the
legislature. Provided that the distinguishing factor employed is not purely
arbitrary, and it bears a reasonable relation to the object of the law, that
is not discrimination even if arguments can be made that some other criteria
could suit the purpose better.
- Parliament has prescribed the offence, the type and quantity of drugs as
the bases to determine the sentences to be meted out to offenders. By its
preamble the Misuse of Drugs Act was enacted “for the control of dangerous
drugs or otherwise harmful drugs and substances and for purposes connected
therewith”. The differentiating factors employed for the death sentence
are not arbitrary, and they bear a reasonable relation to the object of the
- The degree of moral blameworthiness of an offender and other mitigating
and aggravating factors are taken into consideration for sentencing in the
vast majority of the offences where the sentence is not fixed. The failure
to do so could raise questions whether the sentencing power is properly exercised.
But where the legislature has by the proper exercise of its powers prescribed
that for offences involving large quantities of drugs the offenders shall
be punished with death, the punishment will be imposed without hearing pleas
in mitigation, and there is no denial of the equal protection of the law to
- The Defence also relied on the Privy Council’s decision in Reyes
v The Queen  2 AC 235 that a mandatory death penalty is cruel and inhuman
punishment.  This case originated in Belize. Reyes was convicted of murder
by shooting, a class A murder under the laws of Belize, and the mandatory
death sentence for class A murders was imposed. He challenged the constitutional
validity of the sentence, and succeeded before the Privy Council.
- Lord Bingham of Cornhill, in delivering the judgment of the Board, ruled
at  that:
A law which denies a defendant the opportunity, after conviction, to seek
to avoid imposition of the ultimate penalty, which he may not deserve, is
incompatible with section 7 because it fails to respect his basic humanity.
- The provision referred to is s 7 of the Constitution of Belize which provides
No person shall be subjected to torture or to inhuman or degrading punishment
or other treatment.
- To ascertain whether a punishment is inhuman or degrading a court is required
to take into account the “evolving standards of decency that mark the
progress of a maturing society”.
- Lord Bingham reviewed decisions from several jurisdictions and came to
the conclusion at  that:
[T]he provision requiring sentence of death to be passed on the defendant
on his conviction of murder by shooting subjected him to inhuman or degrading
punishment or other treatment incompatible with his right under section 7
of the Constitution in that it required sentence of death to be passed and
precluded any judicial consideration of the humanity of condemning him to
death. The use of firearms by dangerous and aggressive criminals is an undoubted
social evil and, so long as the death penalty is retained, there may well
be murders by shooting which justify the ultimate penalty. But there will
also be murders of quite a different character (for instance, murders arising
from sudden quarrels within a family, or between neighbours, involving the
use of a firearm legitimately owned for no criminal or aggressive purpose)
in which the death penalty would be plainly excessive and disproportionate.
In a crime of this kind there may well be matters relating both to the offence
and the offender which ought properly to be considered before sentence is
passed. To deny the offender the opportunity, before sentence is passed, to
seek to persuade the court that in all the circumstances to condemn him to
death would be disproportionate and inappropriate is to treat him as no human
being should be treated and thus to deny his basic humanity, the core of the
right which section 7 exists to protect.
- The case was argued and decided around s 7 of the Belize Constitution.
Reyes would be relevant to the present case if there is an equivalent provision
to s 7 in Singapore, but no such provision exists in the Constitution or any
Act. The Defence was not deterred by that, and submitted after referring to
the passage in the foregoing paragraph that “the mandatory death penalty
offends the protection offered by Article 12 in the same manner”. 
- That brings the argument back to the question of proper and impermissible
classification criteria, which has been dealt with.
The Beijing Statement
- Article 93 of the Constitution declares that:
The judicial power of Singapore shall be vested in a Supreme Court and in
such subordinate courts as may be provided by any written law for the time
being in force.
- The distinction between the judicial power and the legislative power on
the punishment of offenders is very well set out by the Supreme Court of Ireland
in Deaton v The Attorney General and the Revenue Commissioners  IR 170
There is a clear distinction between the prescription of a fixed penalty and
the selection of a penalty for a particular case. The prescription of a fixed
penalty is the statement of a general rule, which is one of the characteristics
of legislation; this is wholly different from the selection of a penalty to
be imposed in a particular case. … The Legislature does not prescribe
the penalty to be imposed in an individual citizen’s case; it states
the general rule, and the application of that rule is for the Courts.
and at 183:
[T]he selection of punishment is an integral part of the administration of
justice and, as such, cannot be committed to the hands of the Executive …
- On that basis, there can be nothing objectionable in s 33 and the Second
Schedule of the Misuse of Drugs Act.
- Defence counsel also took issue with the post-sentencing provisions in
the CPC relating to death sentences. The specific provisions counsel were
concerned with are sub-ss (c) and (e) of s 220 which read:
(c) in cases in which notice of appeal or notice of an application
for leave to appeal is not given within the prescribed period, the Judge who
presided at the trial shall, as soon as conveniently may be after that period
has elapsed, forward to the Minister a copy of the notes of evidence taken
at the trial, together with a report in writing signed by him stating whether,
in his opinion, there are any reasons (and, if so, what reasons) why the sentence
of death should or should not be carried out;
(e) the President, acting in accordance with section 8 of
the Republic of Singapore Independence Act shall communicate to the High Court
a copy under his hand and seal of any order which he makes, which order, if
the sentence is to be carried out, shall state the time and place when and
where the execution is to be held, and, if the sentence is commuted into any
other punishment, shall so state and, if the person sentenced is pardoned,
shall so state;
- They submit that:
Section 220 requires the trial judge to prepare a report for the Minister
or the Court of Appeal stating whether there are any reasons why the death
penalty which he has had no choice but to pronounce should not be carried
out. The trial judge hears the case, pronounces the sentence and then is called
upon to express a view about the sentence ultimately to the executive without
the accused person having any role in the process – indeed having no
Section 220 of the Code may be treated as evidence of the breach of the doctrine
of separation of powers. It is a legislative requirement on a judicial officer
to take part in the administrative process of the executive. That requirement
arises because of the earlier breach of the doctrine by the legislature mandating
and fixing the sentence.
An issue which arises is whether it is compatible with the doctrine of the
separation of powers to provide for the individualised consideration only
after the imposition of the sentence and by the Executive with no accessible
criteria and with no requirement to give reasons for the final outcome. It
is submitted that the power to determine the severity of the punishment to
be inflicted upon an individual member of a class of offenders should not
be committed to the executive for, in both substance and reality, the decision
as to which of those convicted of importing a controlled substance actually
deserves to suffer death is a sentencing function. The individualised determination
should be performed by the judiciary before the death sentence is pronounced,
not afterwards. Otherwise, contrary to the separation of powers principle,
the sentencing function is being trusted to the executive. 
It was not made clear whether the submission is that the sentence of death
or the power conferred by s 220 is invalid for being in breach of the doctrine
of separation of powers embodied in the Constitution. The tenor of the submission
suggested the latter.
- Section 220 does not stand alone. It draws its authority from Art 22P of
the Constitution which provides that:
22P.—(1) The President, as occasion shall arise, may,
on the advice of the Cabinet —
(a) grant a pardon to any accomplice in any offence who gives information
which leads to the conviction of the principal offender or any one of the
principal offenders, if more than one;
(b) grant to any offender convicted of any offence in
any court in Singapore, a pardon, free or subject to lawful conditions,
or any reprieve or respite, either indefinite or for such period as the
President may think fit, of the execution of any sentence pronounced on
such offender; or
(c) remit the whole or any part of such sentence or of
any penalty or forfeiture imposed by law.
(2) Where any offender has been condemned to death by the
sentence of any court and in the event of an appeal such sentence has been
confirmed by the appellate court, the President shall cause the reports which
are made to him by the Judge who tried the case and the Chief Justice or other
presiding Judge of the appellate court to be forwarded to the Attorney-General
with instructions that, after the Attorney-General has given his opinion thereon,
the reports shall be sent, together with the Attorney-General’s opinion,
to the Cabinet so that the Cabinet may advise the President on the exercise
of the power conferred on him by subsection (1).
- Art 22P and Art 93 exist together. The judicial power of the courts is
to be wielded alongside the President’s prerogative powers. A power
conferred by the Constitution cannot be considered unconstitutional.
- The statement entitled “Beijing Statement of Principles
of the Independence of the Judiciary in the LAWASIA Region” was signed
by the participants at the 6th Conference of Chief Justices of Asia and the
Pacific, including the Chief Justice of Singapore, on 19 August 1995.
- Defence counsel submitted:
The Beijing Statement adds great force to our submission and underlines the
importance of the judiciary in death penalty cases. In the Statement, the
Judiciary is described as an “institution of the highest value in every
society”. The statement also declared that the Judiciary is indispensable
to the implementation of rights under the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights. One of the stated
objectives and functions of the Judiciary was to promote, within the proper
limits of the judicial function, the observance and attainment of human rights.
Importantly, it was also stated that the Judiciary must have jurisdiction
over all issues of a justiciable nature and exclusive authority to decide
whether an issue submitted for its decision is within its competence as defined
It is submitted that the imposition of sentence is fundamentally justiciable
in its nature and part of the criminal trial process and thus requires the
sentence to be passed by an independent and impartial tribunal offering the
accused “the equal protection of the law”. 
- I have to say that I read nothing in the Statement that relates to death
sentences or mandatory death sentences. Counsel did not explain how the Statement,
which does not have the force of a treaty or a convention, assists the accused’s
argument that mandatory death sentences are illegal. Hanging as a cruel and
- The defence asserted that the death penalty that the accused faces is not
only unconstitutional for being a denial of equal protection, but is also
unconstitutional because execution by hanging is cruel, inhuman and degrading
and is not compatible with the evolving standards of decency that mark the
progress of a maturing society. 
- Counsel argued that although there is no constitutional provision against
cruel and inhuman punishment, hanging contravenes Art 9(1) which provides
No person shall be deprived of his life or personal liberty save in accordance
- Section 216 of the CPC states that sentences of death are to be carried
out by hanging. Nevertheless counsel argued that “law” should
be read to include Art 5 of the Universal Declaration of Human Rights (“UDHR”)
No person shall be subjected to torture or to cruel inhuman or degrading treatment
- Counsel justified the position on the basis that:
[T]he articles of the UDHR … protect a person subject to the criminal
law from a death penalty which is cruel and inhuman. A cruel, inhuman and
degrading method of execution would not represent the deprivation of a life
“according to law” under Article 9(1).
[A]n important question arises and that is the role of treaties and customary
international law in domestic or municipal law. We submit that Singapore’s
vital participation in the world of transnational trade and commerce necessarily
connects it to the influence of international standards and that they in turn
must affect Singapore’s domestic or municipal law. 
- The Declaration is not an international treaty or convention and there
is no consensus that it is a statement or codification of customary international
law, and it does not refer to hanging.
- There are those who believe that hanging is a cruel, inhuman or degrading
punishment, but that is by no means a settled view. For example, when this
issue was brought up before the United States Court of Appeals in Campbell
v Wood 18 F 3d 662 (1994), the majority decision was that hanging did not
violate the constitutional protection against cruel and unusual punishments.
- Even if there is such a customary rule, it would not apply if it is inconsistent
with the domestic law. As Lord Atkin explained in Chung Chi Cheung v The King
 AC 160 at 167–168:
[S]o far, at any rate, as the Courts of this country are concerned, international
law has no validity save in so far as its principles are accepted and adopted
by our own domestic law. There is no external power that imposes its rules
upon our own code of substantive law or procedure. The Courts acknowledge
the existence of a body of rules which nations accept amongst themselves.
On any judicial issue they seek to ascertain what the relevant rule is, and,
having found it, they will treat it as incorporated into the domestic law,
so far as it is not inconsistent with rules enacted by statutes or finally
declared by their tribunals. And in Collco Dealings Ltd v Inland Revenue Commissioners
 AC 1, the House of Lords affirmed the proposition that if a statute
is unambiguous, its provisions must be followed even if they are contrary
to international law.
- The Defence has failed to establish that the mandatory death
sentence is unlawful for contravening the Constitution or international law.
That being the case, and having found the accused guilty and convicted him,
the sentence I impose is that he shall suffer death.
 Notes of Evidence page 129
 Notes of Evidence page 120
 Notes of Evidence page 115
 Defence Closing Submissions Part I, para 29
 Defence Closing Submissions, Part II, paras 40 and 44
 Defence Closing Submissions Part II, para 52
 Defence’s Response To The Prosecution’s Closing Submissions Part
II, paras 7 and 8
 Defence Closing Submissions Part II, para 6
 Defence Closing Submissions Part II, para 47
 Defence Closing Submissions Part II, paras 66–67, 69
 Defence Closing Submissions Part II, paras 56–58
 Defence Closing Submissions Part II, para 114
 Defence Closing Submissions Part II, paras 106 and 107
FREEDOM IS A RIGHT OF ALL HUMAN BEINGS IN A WORLD WHERE LIFE IS VALUED AND PEACE MAY FINALLY BE A POSSABILITY
Just in case you forgot - read the Universal declaration of Human Rights