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Facts[edit]

This is an appeal by two appellants, Ong Ah Chuan and Koh Chai Cheng, to the Privy Council, against their convictions under section 3 of the MDA.[1]

Ong Ah Chuan was charged for trafficking 209.84 g 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.[2]

Koh Chai Cheng was charged for trafficking 1,256 g 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.[3]

Procedural History[edit]

Before the High Court, counsel for Ong Ah Chuan submitted that the accused was carrying the drugs for personal purposes, and not for the purposes of delivery or sale, hence the actions did not amount to trafficking within the meaning of the MDA.[4] The accused also claimed that he purchased the large quantity of heroin because it was cheaper to buy it in bulk and more convenient.[5] The trial judges dismissed the defence and found that the accused had invented the story "to escape the consequences of his criminal act".[6] Having found that the appellant was transporting the drugs, his act fell under the definition of "traffic" and 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 were 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.[7]

Both Ong Ah Chuan and Koh Chai Cheng appealed to the Court of Criminal Appeal, which upheld the convictions and sentences.[8] Leave was sought to appeal to the Privy Council against the constitutionality of sections 15 and 29 of the MDA.[9]

Legal Issues on Appeal[edit]

Three issues were raised by counsel for the appellants when the case went before the Privy Council:

  1. Whether the lower court was wrong in construing the presumption of trafficking under section 15 of the MDA.[10]
  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(1) of the Singapore Constitution, and was thus unconstitutional.[11]
  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 the mandatory nature of capital punishment was not "in accordance with law" as set out in Article 9(1).[12] The second was whether the mandatory nature of capital punishment was unconstitutional because it contravened Article 12(1) of the Singapore Constitution.[13]

Holdings and Reasoning[edit]

Presumption of Trafficking[edit]

Article 9(1)[edit]

Article 12(1)[edit]

Article 12 of the Constitution of the Republic of Singapore (1999 Reprint)

Counsel for the appellants contended that the mandatory nature of capital punishment forbids the court from imposing punishment on offenders according to their "individual blameworthiness".[14] This contravenes the principle of equality before the law as provided in Article 12 of the Singapore Constitution because it forces the court to prescribe the highest penalty of death to an addict who supplies to a friend 15 g of heroin, and to mete out a less severe punishment for a drug dealer who sells to others a total of 14.99 g of heroin.[15]

Article 12(1) of the Singapore Constitution provides that "All persons are equal before the law and entitled to the equal protection of the law." In interpreting Article 12(1), the Privy Council explained that it provides for all like persons to be treated alike and prohibits laws that impose different punishments for individuals within the same class.[16] However, the equality provision does not forbid discrimination in prescribing different punishments for different classes of individuals. These classes were differentiated by the circumstances of the offence committed. Such discrimination is consistent with Article 12(1) as long as the element that the Legislature adopts as the differentiating factor is not entirely arbitrary but bears a "reasonable relation to the social object of the law".[17] This is the reasonable relation test.

In applying the test to the case, the Privy Council held that the mandatory death penalty was consistent with Article 12(1). This was because a reasonable relation was found to exist between the social objective of the MDA and the differentiating factor – the quantity of drug involved in the offence. The objective of the MDA is to control the illicit drug trade, especially with regard to drugs that are highly addictive.[18] This creates a social evil – one that the MDA seeks to prevent – which is said to be "broadly proportional to the quantity of addictive drugs"[19] brought into the market. This accordingly justifies the mandatory death penalty, a severe punishment, as it serves as a form of deterrence. Lord Diplock additionally expressed the opinion that the appropriate boundary to be drawn between varying classes of persons is a question best left to the Legislature.[20] Similarly, the court declined to comment on whether differences in circumstances justify the imposition of different punishment. Rather, the court was of the view that the doctrine of separation of powers indicated that such "questions of social policy" are not within the purview of the Judiciary.[21]

Since the appellants could not show that the differentiation amongst offenders on the basis of the quantity of the drug was arbitrary, the appeal on this ground was dismissed.

The reasonable relation test has attracted various academic criticism. In Four Models of Equality,[22] academic Yap Po-Jen argues that the reasonable relation test espoused by the Privy Council in Ong Ah Chuan does not allow the court to take into consideration the “wisdom or propriety of the legislative policy”.[23] This would subsequently indicate that as long as the court can identify a rational nexus between a classification and the object of a statute, it would uphold the legislative policy. This is even if such a policy is “invidiously discriminatory, unreasonable, irrational or unjust”.[24]

Academic Tan Yock Lin also commented that the Privy Council’s approach was a mere tautology as it provides a “glib answer” to any allegations of inequality.[25] He argues that in determining a reasonable differentia, an ideal approach should extend beyond “mere demonstration of rationality”.[26]

Subsequent Development on Article 12(1)[edit]

Application of Ong Ah Chuan[edit]

Several local and foreign cases have adopted the Privy Council’s approach in interpreting Article 12(1).

Singapore cases[edit]

In Nguyen Tuong Van v. Public Prosecutor ("Nguyen Tuong Van"),[27] the court reiterated the statements of Lord Diplock, and additionally restated the “reasonable classification” test.[28] In Kok Hoong Tan Dennis v. Public Prosecutor[29] and Yong Vui Kong v. Public Prosecutor ("Yong Vui Kong"),[30] the courts indicated their support and reaffirmed Ong Ah Chuan's position whereby the differentia has to bear a reasonable relation to the social object of the statute.

Foreign cases[edit]

Courts in other jurisdictions have also applied the reasonable relation test espoused by Lord Diplock. In the Malaysian case of Datuk Yong Teck Lee v. Public Prosecutor,[31] the plaintiff claimed that section 27(8) of the Police Act 1967 (Rev. 1988) violated Article 8(1) of the Malaysian Constitution. Article 8(1) provides that all persons are equal before the law and are entitled to the equal protection of the law. It was argued the equality provision was violated because parliamentarians who participated in illegal demonstrations were subject to a higher mandatory fine as compared to “similarly offending” non-parliamentarians. The court, in response to such a claim, applied the doctrine of reasonable classification and identified a rational relation between the differentia and the object of the statute.

Similarly, in the Indian case of D.C. Bhatia v. Union of India,[32] the applicant challenged the constitutional validity of an amendment to the Delhi Rent Control Act, 1958. This amendment sought to limit the protection of rent-control legislation to areas where the monthly rent was less than 3,500 rupees. In evaluating the applicant’s challenge, the court applied Ong Ah Chuan's test to identify “a rational connection between the legislative classifications and the object of the law”.[33]

Refinement of the test[edit]

The current test adopted in Singapore is the 3-stage test that was reformulated by the Court of Appeal in Public Prosecutor v. Taw Cheng Kong ("Taw Cheng Kong").[34] In determining whether section 37 of the Prevention of Corruption Act (Cap. 241, 1993 Rev. Ed.)[35] was discriminatory against Singaporeans, the court cited Ong Ah Chuan for the proposition that equality simply ensures like treatment for individuals in like situations and not that all persons should be treated equally.[36] On this basis and drawing on cases from foreign jurisdictions, the court set out the 3-stage test as follows:[37]

  • Stage 1 – Whether the law differentiates by prescribing a different treatment for different classes of individuals
  • Stage 2 – Whether the classification is founded on an intelligible differentia that distinguishes people that are grouped together from others which are left out from the group
  • Stage 3 – Whether there is a differentia bears a rational relation to the object sought to be achieved by the law in question

This 3-stage test has since been applied in subsequent cases following Taw Cheng Kong, such as Nguyen Tuong Van. [38]

Over- and Under-inclusiveness[edit]

In Taw Cheng Kong, the court clarified the law on Article 12(1) in relation to the concepts of over- and under-inclusiveness. It was held that a law that is under- or over-inclusive could still bear a rational relation to the object of the legislation. The court was of the view that it would be impractical to expect the enactment of a legislation to be “seamless and perfect to cover every contingency”.[39] Hence, under Article 12(1), under- and over-inclusiveness would not be factors that preclude the finding of a rational relation between the differentia and the law in question.

The concept of arbitrariness in relation to Article 12(1)[edit]

A legislation that is consistent with the Constitution may nevertheless be in violation of Article 12(1) in its application. The rational relation test has been developed and broadened to serve as a legal test for the constitutionality of such administrative decisions. This modified rational relation test considers the arbitrariness of the administrative decision.

The notion of arbitrariness with regard to an equality clause was elucidated in the Indian case of Maneka Gandhi v. Union of India ("Maneka").[40] Here, in reference to its own equality clause – Article 14 of the Constitution of India (the equivalent of Article 12 of the Singapore Constitution) – the court stated that along with the notion of reasonable classification, there must also be a consideration of arbitrariness in an equality clause. It highlighted:

Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits ... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.[41]

Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor ("Tan")[42] applied the principle in Maneka. In discussing Article 8(1) of the Constitution of Malaysia (the equivalent of Article 12 of the Singapore Constitution), the court held that failure to adopt such a principle would result in an “archaic and arcane approach” to the interpretation of Article 8(1).[43]

While this approach requires reading arbitrariness into Article 12(1), local courts have instead integrated the notion of arbitrariness into the rational relation test.

Integrating arbitrariness with the reasonable relation test[edit]

Chng Suan Tze v. Minister for Home Affairs[edit]

In Chng Suan Tze v. Minister for Home Affairs,[44] the appellants contested the validity and legality of sections 8 and 10 of the Internal Security Act (Cap. 143, 1985 Rev. Ed.) ("ISA"),[45] and the powers it conferred upon the Minister. The judgment dealt with the Minister's discretionary powers under the ISA and whether such discretion should be objective or subjective. At the same time, it was argued that the Minister's discretion was not subject to judicial review.

The Court of Appeal held that sections 8 and 10 were not arbitrary as “they provide for the exercise of the power to detain only for specific purposes”[46] and therefore "bore a reasonable relation to the object of the law."[47] Further, the court held that "if the discretion is not subject to review by a court of law",[48] the decision is also rendered arbitrary and contrary to Article 12(1). The court thus equated an arbitrary discretionary power with a law that is in violation of Article 12(1). In so doing, the court seemed to suggest arbitrariness as an additional element of the reasonable relation test expounded in Ong Ah Chuan.

While it was not conclusive in Chng Suan Tze, the recent case of Eng Foong Ho v. Attorney-General ("Eng Foong Ho")[49] seems to have encapsulated this element in its formulation of a broader reasonable relation test for Article 12(1).

Eng Foong Ho v. Attorney-General[edit]

In Eng Foong Ho, the Court was concerned with whether the decision by the Collector of Land Revenue to acquire a particular piece of land was contrary to Article 12(1) of the Constitution.[50]

According to Article 12(2) of the Constitution, equal protection of the law would also apply to the “administration of any law” in relation to the situations stated in the Article. This means the administration of a constitutional legislation may also be in breach of the equal protection clause.

In this case, the appellants were trustees of the land that Jin Long Si Temple occupied. Next to the Temple was the Ramakrishna Mission and the Bartley Christian Church. In an acquisition exercise by the Collector of Land Revenue, the land the Temple occupied was acquired but the other two properties were not.[51] The appellants argued, inter alia, that the acquisition of the Temple was against the equal protection clause as the State discriminated against them in acquiring only their property and not the other two properties.

The courts then developed and applied a modified rational relation test in determining the constitutionality of the Collector's and the State's decision.

Firstly, as the validity of the Land Acquisition Act was not contested, the court said it was "not necessary for us to discuss the principle of reasonable classification of laws".”[52] However it seems apparent that, if contested, the court would have to determine if the differentiating law was founded on an intelligible differentia, based on the rational relation test developed in Taw Cheng Kong.

The court then went on to state that the administration of law “may be unconstitutional if it amounts to intentional and arbitrary discrimination.”[53] Mere existence of inequalities “due to inadvertence or inefficiency”[54] was insufficient, unless it was on a “very substantial scale”.[55]

It appears that the third stage of the rational relation test does not require an establishment of a rational nexus between the object sought to be achieved, and the impugned legislation in question. This would be apparent because the issue is not with the legislation, which is valid, but the exercise of powers conferred by the legislation. Instead, the third stage now involves an inquiry on whether the unequal treatment was "intentional and arbitrary"[56] on a "very substantial scale".[57] The element of arbitrariness, as mentioned in Chng Suan Tze, has become a key factor in determining if the inequality amounts to a violation of Article 12(1).

Alternative to Ong Ah Chuan's approach[edit]

The American courts have adopted a framework that serves as an alternative to the test adopted in Ong Ah Chuan. American jurisprudence has developed a “suspect classification” model, which has a constitutional basis in the Equal Protection Clause.[58] Unlike Ong Ah Chuan's approach, this model encompasses three tiers of scrutiny. The level of scrutiny to be applied in each case is dependent upon the particular facts involved.

Levels of Scrutiny Test Application
Strict Scrutiny The measure must be narrowly tailored to a compelling state interest to withstand strict scrutiny.[59] Applied when the challenged law impinged on fundamental rights or involves a “suspect classification”.

Race, national origin and alienage are recognized as “suspect”.[60]

Intermediate Scrutiny The challenged law must be proven to substantially advance an important state interest.[61] Applied when “quasi-suspect” classifications are involved.

Classifications based on gender or illegitimacy.[62]

Rational Basis Review This rational basis review requires the law to bear a rational relationship to a legitimate governmental purpose.[63] The test requires only the existence of “any reasonably conceivable state of facts that could provide a rational basis for the classification”[64] and the legislature is not required to supply reasons for enacting the law.[65] Applied when the law in question neither impinges a fundamental right nor involves a suspect or "quasi-suspect" classification.

See also[edit]

Notes[edit]

  1. ^ Ong Ah Chuan, p. 713, para. 1.
  2. ^ Ong Ah Chuan, p. 713, para. 3.
  3. ^ Ong Ah Chuan, p. 714, para. 4.
  4. ^ Ong Ah Chuan v. Public Prosecutor [1980] S.G.P.C 6 (unreported)
  5. ^ Ong Ah Chuan v. Public Prosecutor [1980] S.G.P.C 6 (unreported)
  6. ^ Ong Ah Chuan v. Public Prosecutor [1980] S.G.P.C 6 (unreported)
  7. ^ Ong Ah Chuan, p. 714, para. 4.
  8. ^ Ong Ah Chuan, p. 714, para. 5.
  9. ^ Ong Ah Chuan, p. 714, para. 5.
  10. ^ Ong Ah Chuan, p. 714, para. 5 and p. 715, para. 7.
  11. ^ Ong Ah Chuan, p. 714, para. 5.
  12. ^ Ong Ah Chuan, p. 714, para. 5 and p. 724, para. 32.
  13. ^ Ong Ah Chuan, p. 714, para. 5 and p. 724, para. 32.
  14. ^ Ong Ah Chuan, p. 724, para. 32.
  15. ^ Ong Ah Chuan, p. 724, para. 32.
  16. ^ Ong Ah Chuan, p. 725, para. 35.
  17. ^ Ong Ah Chuan, p. 725, para. 37.
  18. ^ Ong Ah Chuan, p. 725, para. 37.
  19. ^ Ong Ah Chuan, p. 725, para. 38.
  20. ^ Ong Ah Chuan, p. 725, para. 38.
  21. ^ Ong Ah Chuan, p. 725, para. 37.
  22. ^ Po-Jen Yap (2005), "Four Models of Equality" (PDF), Loyola L.A. Int'l & Comp. L. Rev, 27: 63 .
  23. ^ Yap, p. 73.
  24. ^ Yap, p. 73.
  25. ^ Tan Yock Lin (1998), "Equal Protection, Extra-territoriality and Self-incrimination", Singapore Law Review, 19: 10–44 at 17 .
  26. ^ Tan, p. 17.
  27. ^ Nguyen Tuong Van v. Public Prosecutor [2005] 1 S.L.R.(R.) 103 ("Nguyen Tuong Van").
  28. ^ Nguyen Tuong Van, p. 123, para. 70.
  29. ^ Kok Hoong Tan Dennis v. Public Prosecutor [1996] 3 S.L.R.(R.) 581 at 721, para. 40.
  30. ^ Yong Vui Kong v. Public Prosecutor [2010] 3 S.L.R. 489 (CA) at 536-537, paras. 111-112.
  31. ^ Datuk Yong Teck Lee v. Public Prosecutor [1993] 1 M.L.J 295.
  32. ^ D.C. Bhatia v. Union of India (1995) 1 S.C.C 104 ("D.C. Bhatia").
  33. ^ D.C. Bhatia, p. 113, para. 73.
  34. ^ Public Prosecutor v. Taw Cheng Kong [1998] 2 S.L.R.(R.) 489.
  35. ^ Prevention of Corruption Act (Cap. 241, 1993 Rev. Ed.)
  36. ^ Taw Cheng Kong, p. 506, para. 54.
  37. ^ Taw Cheng Kong, pp. 507–508, paras. 58–59.
  38. ^ Nguyen Tuong Van, p. 120, para. 56.
  39. ^ Taw Cheng Kong, p. 514, para. 81.
  40. ^ Maneka Gandhi v. Union of India [1978] SC 597 (“Maneka”).
  41. ^ Maneka at p.674.
  42. ^ Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261.
  43. ^ Tan at p.674.
  44. ^ Chng Suan Tze v. Minister for Home Affairs [1988] 2 S.L.R.(R) 525 ("Chng Suan Tze").
  45. ^ Internal Security Act (Cap. 143, 1985 Rev. Ed.).
  46. ^ "Chng Suan Tze", p. 552, para. 82.
  47. ^ "Chng Suan Tze", p. 552, para. 81.
  48. ^ "Chng Suan Tze", p. 552, para. 82.
  49. ^ Eng Foong Ho v. Attorney-General [2009] 2 S.L.R.(R.) 542 ("Eng Foong Ho").
  50. ^ Eng Foong Ho, p. 544, para. 1.
  51. ^ Eng Foong Ho, p. 545, para. 7-8.
  52. ^ Eng Foong Ho, p. 550, para. 26.
  53. ^ Eng Foong Ho, p. 553, para. 30.
  54. ^ Eng Foong Ho, p. 550, para. 28, citing Howe Yoon Chong v. Chief Assessor, Singapore [1979-1980] S.L.R.(R.) 594, p. 600, p. 13.
  55. ^ Eng Foong Ho, p. 550, para. 28, citing Howe Yoon Chong v. Chief Assessor, Singapore [1979-1980] S.L.R.(R.) 594, p. 600, p. 13.
  56. ^ Eng Foong Ho, p. 553, para. 30.
  57. ^ Eng Foong Ho, p. 550, para. 28, citing Howe Yoon Chong v. Chief Assessor, Singapore [1979-1980] S.L.R.(R.) 594, p. 600, p. 13.
  58. ^ Aaron Baker (2008), "Proportional, Not Strict, Scrutiny: Against a US ‘Suspect Classifications’ Model under Article 14 ECHR in the UK", Am J Comp L, 56: 847-894 at 868 .
  59. ^ Palmore v. Sidoti 466 U.S. 429 (1984), Supreme Court (United States).
  60. ^ Baker, p. 869.
  61. ^ Craig v. Boren 429 U.S. 190 (1976), Supreme Court (United States).
  62. ^ Baker, p. 869.
  63. ^ Lindsley v. Natural Carbonic Gas Co. 220 U.S. 61 (1911), Supreme Court (United States).
  64. ^ Federal Communications Commission v. Beach Communications, Inc 508 U.S. 307 (1993), Supreme Court (United States) ("Federal Communications Commission").
  65. ^ Federal Communications Commission, p. 315.

References[edit]

Cases[edit]

Legislation[edit]

Other works[edit]

  • Baker, Aaron (2008), "Proportional, Not Strict, Scrutiny: Against a US ‘Suspect Classifications’ Model under Article 14 ECHR in the UK", Am J Comp L, 56: 847-894 at 868 .
  • Lim, C.L. (2004), "Public International Law before the Singapore and Malaysian Courts", Singapore Year Book of International Law, 8: 243–281, archived from the original (PDF) on 23 October 2011 .
  • Yap, Po-Jen (2005), "Four Models of Equality" (PDF), Loyola L.A. Int'l & Comp. L. Rev, 27: 63 .
  • Tan, Yock Lin (1998), "Equal Protection, Extra-territoriality and Self-incrimination", Singapore Law Review, 19: 10–44 .

Further reading[edit]

Articles[edit]

Books[edit]

  • Tan, Kevin Y[ew] L[ee]; Thio, Li-ann (2010), "The Right to Equality & Equal Protection", Constitutional Law in Malaysia and Singapore (3rd ed.), Singapore: LexisNexis, pp. 871–970, ISBN 978-981-236-795-2 (hbk.) Check |isbn= value: invalid character (help) .