Seminar 5 MDA
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Transcript of Seminar 5 MDA
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7/30/2019 Seminar 5 MDA
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Case Study: Misuse of
Drugs ActSeminar 5
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7/30/2019 Seminar 5 MDA
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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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Treatment and rehabilitation
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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Treatment and rehabilitation
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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7/30/2019 Seminar 5 MDA
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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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Mandatory death penalty
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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7/30/2019 Seminar 5 MDA
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Mandatory death penalty
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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7/30/2019 Seminar 5 MDA
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Mandatory death penalty
Death by hanging
Cruel and inhuman punishment?
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7/30/2019 Seminar 5 MDA
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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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Judicial interpretation
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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Judicial interpretation
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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Judicial interpretation
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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