Ong Ah Chuan v Public Prosecutor


Ong Ah Chuan v Public Prosecutor is a landmark decision delivered in 1980 by the Judicial Committee of the Privy Council on appeal from Singapore which deals with the constitutionality of section 15 of the Misuse of Drugs Act 1973 , and the mandatory death penalty by the Act for certain offences. The appellants contended that the presumption of trafficking under section 15 of the MDA violated Article 9 of the and that the mandatory death penalty was arbitrary and violated Article 12 of the Constitution.
Dismissing the appeal, the Privy Council clarified several issues of Singapore law. It explained that the word law in Article 9 includes fundamental rules of natural justice. The court also held that Article 12 does not prohibit differentiation between classes of people, but requires that like should be compared with like. It also laid out the "reasonable relation" test to determine if legislation is in breach of Article 12.
Ong Ah Chuan has been referred to in subsequent cases. In some of them, attempts have been made to argue that certain legal principles are fundamental rules of natural justice, and thus constitutionally protected by Article 9. There has also been academic discussion concerning whether fundamental rules of natural justice enable the courts to examine the substantive fairness or reasonableness of laws. The ruling in Ong Ah Chuan that the mandatory death penalty is constitutional has not been followed in later Privy Council decisions. These cases were distinguished by the Singapore Court of Appeal in Yong Vui Kong v. Public Prosecutor on the basis that the constitutions involved in those cases contained express prohibitions against inhuman or degrading punishment or treatment, which the Singapore Constitution lacks.
The reasonable relation test applied to Article 12 by the Privy Council has been applied in a number of local and foreign cases. It was reformulated into a three-stage test by the Court of Appeal in Public Prosecutor v. Taw Cheng Kong. The Court applied a modified version of the test to situations involving the discriminatory application of neutral laws in Eng Foong Ho v. Attorney-General, and expressed the view that Article 12 would only be infringed in such cases where there was intentional and arbitrary discrimination, or inequalities due to inadvertence or inefficiency on a very substantial scale. The element of arbitrariness was also mentioned by the Court in Chng Suan Tze v. Minister for Home Affairs – it said a law that allows a public authority to exercise arbitrary discretionary power is in violation of Article 12.

Facts

The case involved an appeal by two appellants, Ong Ah Chuan and Koh Chai Cheng, to the Judicial Committee of the Privy Council – then Singapore's final appellate court – against their separate convictions under section 3 of the Misuse of Drugs Act 1973. by the High Court of Singapore, which were upheld by the Court of Criminal Appeal.
Ong Ah Chuan was charged for trafficking of heroin. Two narcotics officers witnessed the appellant putting a plastic bag into his car and followed him. The appellant drove to Bukit Timah Road, where he was arrested by the officers. The officers searched the appellant's car and found the heroin in his car. Koh Chai Cheng was charged for trafficking of heroin. The appellant brought the heroin into Singapore from Malaysia in order to sell it to a buyer, who was actually a police informer. The appellant was arrested when he was about to drive away from the meeting place and the heroin was discovered in the boot of his car.

Procedural history

Before the High Court, counsel for Ong submitted that since the accused had been carrying the drugs for personal purposes and not for the purposes of delivery or sale, the actions did not amount to trafficking within the meaning of the MDA. The accused also claimed that he had purchased the large quantity of heroin because it was cheaper and more convenient to buy it in bulk. The trial judges dismissed the defence and found that the accused had invented the story "to escape the consequences of his criminal act". Having found that the accused had been transporting the drugs, his act fell under the definition of traffic in the Act. He was convicted for trafficking heroin and sentenced to death.
In Koh Chai Cheng's case, he denied knowledge of the drugs and contended that they had been planted in the boot of his car by police informers after he had arrived in Singapore. The trial judges rejected the argument, and the accused was accordingly convicted.
Both Ong Ah Chuan and Koh Chai Cheng appealed to the Court of Criminal Appeal, which upheld the convictions and sentences. They sought and obtained leave to appeal to the Privy Council against the constitutionality of sections 15 and 29 of the MDA. Section 15 created a rebuttable presumption that if a person was in possession of an amount of drugs exceeding the minimum quantities specified in the section, the possession was for trafficking purposes. The effect of section 29 and the Second Schedule of the Act was to impose the mandatory death penalty for trafficking above a certain quantity of drugs.

Legal issues on appeal

Three issues were raised by counsel for the appellants when the case went before the Privy Council:
  1. Whether the Court of Criminal Appeal was wrong in construing the presumption of trafficking under section 15 of the MDA.
  2. Even if the presumption of trafficking under section 15 of the MDA was validly construed, whether the presumption was not "in accordance with law" as set out in Article 9 of the Constitution of Singapore, and was thus unconstitutional.
  3. Whether the mandatory nature of capital punishment, for offences as broadly drawn as that of trafficking created by section 3 of the MDA, was unconstitutional. In addressing this issue, two sub-issues were raised. The first was whether mandatory capital punishment was "in accordance with law" as set out in Article 9. The second was whether the mandatory nature of capital punishment was unconstitutional because it contravened Article 12 of the Singapore Constitution.

    Decision of the court

Presumption of trafficking

The appellants' first submission was that the Court of Criminal Appeal had erred in deciding that the drugs found in the possession of the accused persons had been for trafficking purposes under section 15 of the MDA. This argument was rejected by the Privy Council.
The Privy Council's decision was delivered by Lord Diplock on 15 October 1980. His Lordship held that in Singapore, the offences of drug possession and drug trafficking are distinct from each other. Drug trafficking was an offence under section 3 of the MDA. Drug possession, on the other hand, was an offence under section 6 of the MDA. The cases of Poon Soh Har v. Public Prosecutor and Seow Koon Guan v. Public Prosecutor were cited as evidence of Singapore courts upholding this distinction. Where the accused was found to be transporting controlled drugs, it was held that the transporter's purpose would determine whether the offence was one of drug possession or drug trafficking. Trafficking entailed the moving of drugs for the purpose of transferring possession from the mover to some other person, whether this purpose was achieved or not.
It was observed by the Privy Council that section 15 of the MDA assigned various quantity levels to certain controlled drugs, such as for heroin. On securing proof that an accused possessed more than 2 grams of heroin, the courts could adopt a rebuttable presumption that such possession was for trafficking purposes, pursuant to section 3 of the MDA. It would be for the accused to rebut the presumption by proving that the possession of drugs above the limits set out under section 15 was not for trafficking purposes. Acquittal from the offence of drug trafficking could be secured if the accused could prove that the conveying of the drugs from one place to another was for the purpose of personal consumption.
Lord Diplock explained that the rationale for the section 15 presumption was the difficulty in proving the purpose of trafficking. In drug trafficking cases, the strongest attainable evidence was likely to be the act of transporting the drugs. Regardless of this, his Lordship held that even in the absence of section 15, it could be inferred that the transportation of a large quantity of drugs was for trafficking purposes. As a matter of common sense, the larger the quantity, the more likely it is for trafficking. Therefore, the appellants' argument that the Court of Criminal Appeal had erred in construing the presumption created by section 15 of the MDA was rejected.

Article 9(1) of the Constitution

The second argument of the counsel for the appellants was that even if the Court of Criminal Appeal had not erred in construing the presumption in section 15 of the MDA, the presumption was inconsistent with Article 9 of the Constitution.

Interpreting the Constitution

In addressing this argument, Lord Diplock first clarified how the Constitution should be interpreted. Referring to the judgment by Lord Wilberforce in Minister of Home Affairs v. Fisher, he affirmed that a constitution on the Westminster model should be interpreted not as an Act of Parliament, but as "sui generis, calling for principles of interpretation of its own, suitable to its character". He also held that fundamental liberties in Part IV of the Constitution should be given a "generous interpretation" so as to give individuals the full measure of the liberties referred to.
Article 9 of the Constitution states: "No person shall be deprived of his life or personal liberty save in accordance with law." Counsel for the Public Prosecutor argued that the word law in Article 9 included written law. Since Article 2 defined written law included all Acts in force in Singapore, all Acts which were validly passed by Parliament would be consistent with Article 9 even if they deprived a person of life or personal liberty. Being Acts in force in Singapore, they were "in accordance with the law".
The Privy Council rejected such an approach to interpreting the term "in accordance with law". Citing Article 4, which declares the Constitution to be the supreme law of Singapore and states that laws enacted by the Legislature which are inconsistent with the Constitution are void, the court maintained it had the duty to determine whether any Act of Parliament was inconsistent with the Constitution and thus void. A law that is void will not be in force in Singapore, and consequently, will not be grounds for depriving a person of his life or personal liberty under Article 9.