Seminar 5 MDA

7/30/2019 Seminar 5 MDA

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Case Study: Misuse of

Drugs ActSeminar 5


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Spore govts reasons for

criminalization

Harm

Who?

Harm to individual

Families

Society who has to support drug addicts

Country (economic growth)


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Singapores drug regulatory regime

Criminal law General concepts: Penal Code

Specific concepts: MDA, Intoxicating Substances Act

Executive action (not subject to judicial oversight) Criminal Law (Temporary Provisions) Act: in the interests

of public safety, peace and good order

Administrative action Treatment and rehabilitation


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Treatment and rehabilitation

Director

Art. 34 MDA

reasonably suspects --- medical examination

appears to be necessary

Supervisory order or

Rehabilitation order


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Approved institutions (Art. 35 MDA)

Minister

Review committee (Art. 37 MDA) Appointed by Minister4 individuals

6 months (Art. 37 (4) MDA)

Director 2 years (Art. 37 (4A) MDA)

Three year limit


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What if you are wrongfully detained?

Art. 39 MDA: magistrate complaint

Inquire himself Delegate to police

Private hearing

Evidence cannot be used in criminal or civil

proceedings


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Unique features of Spores drug

laws

Mandatory death sentence

The use of presumptions

Strict judicial interpretation


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Mandatory death penalty

Ong Ah Chuan

Art. 9 Constitution no one shall be deprived of his

life or personal liberty save in accordance with

law

Art. 12 (1) Constitution all persons are equal

before the law and entitled to the equal protection

of the law


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Ong Ah Chuan

Argument

Prevents proper distinction between accused

Arbitrary

What is the differentiation based on?

drug quantity Is this justified?

Social policy --- job of the legislature


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Ong Ah Chuan

Not concerned with equal punitive treatment

for equal moral blameworthinessconcerned

with equal punitive treatment for similar legal

guilt para. 39

Do you agree

Reflect on aims of criminal law and criminal

punishment


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Death by hanging

Cruel and inhuman punishment?


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International law

Nguyen Tuong Van Vietnamese Australian

24 years old

Universal Declaration of Human Rights Art. 5

No one shall be subject to torture or cruel,

inhuman or degrading punishment

Argue that this is custom

Court of Appeal

No - many countries have mandatory death penalty

Even so, domestic law can over-rule international

law


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Presumptions: MDA

Burden of proof: presumption of innocence (s.103 Evidence Act)

Whoever wishes any court to give judgment as to

any legal right or liability, dependant on theexistence of facts which he asserts, must prove thatthose facts exist

General rule: Burden of proof on prosecution


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Presumptions: MDA

17.Any person who is proved to have had in his possession more than

(a) 100 grammes of opium;

(b) 3 grammes of morphine;

(c) 2 grammes of diamorphine;

(d) 15 grammes of cannabis;

(e) 30 grammes of cannabis mixture; (f) 10 grammes of cannabis resin;

(g) 3 grammes of cocaine;

(h) 25 grammes of methamphetamine;

(ha) 113 grammes of ketamine; or

(i) 10 grammes of any or any combination of the following: (i) N, -dimethyl-3,4-(methylenedioxy)phenethylamine;

(ii) -methyl-3,4-(methylenedioxy)phenethylamine; or

(iii) N-ethyl-methyl-3,4-(methylenedioxy)phenethylamine,

whether or not contained in any substance, extract, preparation or mixture,shall be presumed to have had that drug in possession for the purpose oftrafficking unless it is proved that his possession of that drug was not forthat ur ose.


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Presumptions: MDA

Presumption of possession and knowledge of controlled drugs

18.(1) Any person who is proved to have had in his possession orcustody or under his control

(a) anything containing a controlled drug;

(b) the keys of anything containing a controlled drug;

(c) the keys of any place or premises or any part thereof in which acontrolled drug is found; or

(d) a document of title relating to a controlled drug or any other documentintended for the delivery of a controlled drug,

shall, until the contrary is proved, be presumed to have had that drug in hispossession.

(2) Any person who is proved or presumed to have had a controlled drug inhis possession shall, until the contrary is proved, be presumed to haveknown the nature of that drug.

Double Presumption:Low Lin Lin (case to case examination, control,whether others also had access vs airport check-in scenario)


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Presumptions

Ong Ah Chuan

Fundamental rules of natural justice in the

field of criminal law?

Presumption is ok here

Purpose peculiarly within the knowledge of the

accused

per se unlawful

Law concerns society interest


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How should presumptions be read?

Mohd Halmi (3 peopleA asks B to pick up packetfrom C, A and C charged with abetting B to traffic, Bcharged with trafficking)

Trial court

suggests that s 17 cannot ride on s 18 (1) but can ride on s18 (2)

Court of Appeal s17 and s18 separate regime

s17 (trafficking) s18 (possession) Can only prove trafficking directly through s 2 or s 17

Here falls under s 2doesnt need to know who he isgiving to


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Presumptions

Rebutting the presumption of knowledge

Tan Kiam Peng(High Court)

Must prove lacked knowledge ofdrugs nature

E.g. name of drug, classification, punishment

associated

Fact analysislook at matter good dose of

common sense


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Judicial interpretation

Ordinary meaning of words

Ordinary mans reading?

Purposive interpretation

Parliaments intent - parliamentary reports

Holistic consideration (e.g. punishment)

What about the role of the courts?

Guardian of individual rights and concerns or enforcer ofgovernmental policy?


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Strict judicial interpretation: MDA

MDA wording -- not self-evident

Traffic

sell, give, administer, transport, send, deliver ordistribute

Offer

1993 amendment: Art. 5 (2)

Broad literal definition

but is it possible to temper with a purposive interpretation?


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Muhammad Jeffry (some drugs were given to

gf for her own use)

Court of Appeal

Traffickinggave drugs physical act without

any reference to ownership


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Ng Yang Sek chinese sinseh case opium as secret

ingredient

Knew it was opium

Lower court

traffickingsentenced to death

Court of Appeal - acquitted of trafficking charge

Not associated with trade, not intended for drug addiction,

didnt reveal ingredients to patients, dont deservedisapprobation reserved for drug dealers

2 years imprisonment, 10 000 fine


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Lee Yuan Kwang asked to keep drugs by friend

intended to keep then decided to heavy and intended

to return

Court of Appeal trafficking - As long as was to transfer possession back

Does not matter if custodian or in process of returning the

drugs

Cloakroom attendant example cited


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Judicial interpretation Jeffrey Ong(Ecstasy case)

Argued MDA dont intend to target first-timers

like him

Plain meaning vs purposive interpretation

DistinguishNg Yang Sek (Opium doctor) no

ambiguity of defendants guilt here

Falls also within purposive interpretation -Parliament intends would-be traffickers


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Seminar 5 MDA

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