How substantive is “substantive assistance”?

by Joshua Kow

INTRODUCTION

The prominent case of Yong Vui Kong (hereafter referred to as “Yong”) needs no further introduction in the criminal law fraternity. In 2007, at the impressionable age of 19, Yong was caught in possession of 47.27g of diamorphine (commonly known by its other name, heroin) near the Meritus Mandarin Hotel by Central Narcotics Bureau officers (hereafter referred to as “CNB”). At the time Yong was caught, the punishment in Singapore for unauthorised trafficking of above 15 g of heroin is death1.

In 2009, Yong was sentenced by Justice Choo Han Teck to suffer death under s 5(1a) of the Misuse of Drugs Act (Cap 185) (hereafter referred to as the “MDA”)2. This marked the advent of a series of constitutional challenges, as well as criminal motions and judicial review proceedings in Singapore courts, not limited to, inter alia, two presidential appeals for clemency, a stay of execution in light of human rights lawyer M Ravi’s constitutional challenge of the mandatory death penalty, and a judicial review of the clemency process in 20103.

THE CERTIFICATE PER SE

On 18 September 2013, the Attorney General’s Chambers (hereafter referred to as the “AGC”) released a media statement4 stating that “the Public Prosecutor will certify to the High Court that Subashkaran and Yong had substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within and outside Singapore.” This would be in the form of what is known as the “Certificate of Substantive Assistance”, which will be the subject of focus in this article.

Yong and Subashkaran are not the first to receive this certificate under the law5. However, they are the first two serving inmates on the death row to be issued the certificate. Since the 2012 Amendments to the Misuse of Drugs Act have a retrospective effect, the Parliament now has the opportunity to reverse the death sentence.

In order to better appreciate the significance of this Certificate and what it entails, we must first look at the relevant portion of the law which provides for its issuance by the Public Prosecutor. This relevant portion is s 33B(1) and (2) of the MDA6. In short, s 33B (1) empowers the court with the option of sentencing the convict to imprisonment for life. In order to do so, however, the convict must satisfy two conditions provided in 33B(2), namely:

(a) The person convicted proves, on a balance of probabilities, that his involvement in the offence under section 5(1) or 7 was restricted — to transporting, sending or delivering a controlled drug; to offering to transport, send or deliver a controlled drug; to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or to any combination of activities above;

(b) The Public Prosecutor certifies to any court that, in his determination, the person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore.

[emphasis added]

Out of the two conditions set forth by the section above, Yong has already fulfilled one as the Certificate of Substantive assistance, is a written affirmation by the Public Prosecutor of the requirement set out in s 33B(2). He now needs to prove to the Court, on a balance of probabilities, that his role was merely that of a “drug courier” (i.e. simply transporting, sending, or delivering the heroin), as well as to convince the Court that they should reverse his sentence of death, and substitute it with imprisonment for life with caning. Noting the Prosecution’s indication that they will not seek the death penalty, the latter may be fulfilled more easily.

The possibility of sidestepping the gallows comes as a source of tremendous relief7 not only for Yong and his family, but also to his counsel M Ravi, who has already initiated proceedings for re-sentencing on 23rd September 2013 to be heard once more before Justice Choo Han Teck8. As of yet, the re-sentencing hearing date remains unconfirmed.

CRITERIA IN ISSUING THE CERTIFICATE

s 33B of the MDA was first introduced via Clause 14 of the Misuse of Drugs (Amendment) Bill (No. 27 of 2012), which sought to “empower the court to impose a life sentence instead of the death sentence in certain circumstances”9. In the annexed Explanatory Statement (Pg. 33 onwards), three verbatim statements are of crucial significance:

  1. Substantive assistance to the Bureau in disrupting drug trafficking activities may include, for example, the provision of information leading to the arrest or detention or prosecution of any person involved in any drug activity;
  2. Any information which does not enhance the effective enforcement of the provisions of the Act will not suffice; and
  3. The issue of the certificate will be determined by the Public Prosecutor in his sole discretion.

Interpreting the statements above in a larger context, two points become obvious. Firstly, the fact of whether a convict has rendered “substantive assistance” to the CNB or not depends very much on the information he is able to provide to them. Secondly, the Public Prosecutor is given full, independent control in deciding whether or not to issue the certificate.

THE NATURE OF SUBSTANTIVE ASSISTANCE

Substantive assistance to the CNB in the form of “provision of information leading to the arrest or detention or prosecution” is inherently unfair and possibly onerous to the convict. Drug couriers (i.e. Yong) who satisfy the provisions of s 33B(1) are, for lack of a better phrase, the “lower rungs of the ladder” in the larger hierarchy of the illegal drug trade.

Realistically, it is highly unlikely that couriers would possess such information, either because the leaders of the syndicate have taken steps to restrict the downward flow of such information, or the revelation of such information would endanger their family members (a situation faced by Yong himself10). After all, such threats are not uncommon, as evidenced by a series of past cases.11 Furthermore, it would be foolhardy to assume that the Police will be able to provide the accused with round-the-clock protection for both themselves and their family members, some of whom may not even be in Singapore. This limits the information made readily available to the CNB, to the detriment of the convict.

In accepting such a requirement, a troubling dilemma arises when two equally culpable convicts of drug trafficking are sentenced to death and life imprisonment respectively, merely because one was able to provide “more substantive” information over the other, a factor which none of the convicts are able to control. What more, if the CNB officer chooses to not recognise or value the convict’s assistance even if he did provide “substantive” aid?

Essentially, the ultimate factor in the sentencing of the convict becomes the economic premise of how “useful” he or she is to the State 12, a factor determined entirely by chance and the discretion of others, rather than how heinous or morally repulsive the crimes are. That is not to say, however, that “usefulness” is the only factor; moral culpability still remains a key consideration in sentencing, presuming that the convict qualifies first under s 33B.

Arguably, this cannot be fair and just. While providing assistance can and should definitely be considered a mitigating factor in sentencing, it should not remain the only factor considered. Perhaps, other factors (e.g. the willingness of the convict to cooperate in the investigative efforts of the CNB) should also come into play, in consideration of the likelihood of lack of substantive information. In a situation of life or death, substantive assistance alone would not reasonably justify a shift between punishments which are qualitatively and categorically different.   PROSECUTORIAL DISCRETION

Regardless of how substantive a convict’s assistance to the CNB may be, a worrying aspect of this freshly-added MDA section is the full, independent discretion of the Public Prosecutor in the issuance of the certificate itself. Member of Parliament for Aljunied, Ms Sylvia Lim, pointed out that it is “foreseeable that some accused persons may not receive the certificate even if they were willing to provide the CNB with whatever information they had.”13

At present, the Public Prosecutor still holds “veto” power over whether the offender faces mandatory death or not. Giving the Public Prosecutor sole discretion in issuing the certificate makes him the “ultimate judge of substantive cooperation” instead14, a marked departure from what ought to be within the power of an independent judge who is obliged also to give reasons for his decision. In effect, such an amendment would not change the status quo in favour of more transparency or accountability, since the Public Prosecutor’s decision remains unaccountable and opaque. In imposing a death penalty which is mandatory, giving the Public Prosecutor full discretion in issuing the certificate makes it no different from the law prior to amendment.

CONCLUSION

No doubt, the amendments to the MDA are ultimately made in advancement of the CNB’s effectiveness in combating drug abuse, and in good faith. However, the choice of phrasing of s 33B, as well as the inordinate discretion of the Public Prosecutor in this instance, elucidate either an alarming lack of regard for the problems which may ensue therefrom, or an express recognition that these are not problems which matter in the overall equation. Whether the Act can truly achieve its aims in lieu of the observations above remain to be seen in due course.


The author would like to thank Damien Chng and Priscilla Chia of We Believe in Second Chances for their invaluable assistance and insight, without which this article would not have been possible.

[1] Misuse of Drugs Act (Cap 185, 2008 Rev Ed Sing) – SECOND SCHEDULE Offences Punishable on Conviction

[2] Public Prosecutor v Yong Vui Kong [2009] SGHC 4

[3] Cases referred to are, in order of mention:  (1) Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489, [2010] SGCA 20 for constitutional challenge; (2) Yong Vui Kong v Attorney-General [2010] SGHC 235, [2011] 1 SLR 1 for judicial review of clemency process.

[4] http://app.agc.gov.sg/DATA/0/Docs/NewsFiles/AGC%20MEDIA%20STATEMENT_AGC%20TO%20ISSUE%20CERTIFICATES%20OF%20SUBSTANTIVE%20ASSISTANCE_18%20SEPT%202013.pdf – AGC TO ISSUE CERTIFICATES OF SUBSTANTIVE ASSISTANCE

[5] The first being Abdul Halim in Public Prosecutor v Abdul Halim bin Abdul Karim and Anor [2013] SGHC 110.

[6] http://www.parliament.gov.sg/sites/default/files/Misuse%20of%20Drugs%20(Amendment)%20Bill%2027-2012.pdf – Misuse of Drugs (Amendment) Bill, Bill No 27/2012

[7] http://www.theonlinecitizen.com/2013/09/yong-vui-kong-receives-certificate-of-cooperation – Yong Vui Kong receives Certificate of Cooperation | The Online Citizen

[8] http://www.theonlinecitizen.com/2013/09/yong-vui-kong-happy-for-2nd-chance-m-ravi – Yong Vui Kong happy for 2nd chance: M Ravi | The Online Citizen

[9] http://www.parliament.gov.sg/sites/default/files/Misuse%20of%20Drugs%20(Amendment)%20Bill%2027-2012.pdf – Misuse of Drugs (Amendment) Bill, Bill No 27/2012

[10] Yong Vui Kong v Public Prosecutor [2012] SGCA 23, [2012] 2 SLR 872,Chan CJ at [8]

[11] Examples of such include: (1) Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156, [2011] SGCA 49, Chan CJ at [6], and (2) Public Prosecutor v Ng Pen Tine and Anor [2009] SGHC 230, Chan Seng Onn J at [16-17]

[12] We Believe in Second Chances, November 2012 – Report on the changes to the Mandatory Death Penalty in the Penal Code (Amendment) Bill and the Misuse of Drugs Act (Amendment) Bill 2012 at [35]

[13] Singapore, Parliament of Singapore, Hansard, 11th Parl, 2nd Sess No 1 (12 November 2012) Ms Sylvia Lim (Aljunied) at [16]

[14] We Believe in Second Chances, November 2012 – Report on the changes to the Mandatory Death Penalty in the Penal Code (Amendment) Bill and the Misuse of Drugs Act (Amendment) Bill 2012 at [26] and [31].