Yong Vui Kong v. Public Prosecutor was a seminal case decided in 2010 by the Court of Appeal of Singapore which, in response to a challenge by Yong Vui Kong, a convicted drug smuggler, held that the mandatory death penalty imposed by the ("MDA") for certain drug trafficking offences does not infringe Articles 9(1) and 12(1) of the Constitution of Singapore.
Article 9(1) states: "No person shall be deprived of his life or personal liberty save in accordance with law." The Court of Appeal held that the term law does not exclude laws sanctioning inhuman punishment. This does not mean that all laws are justified whatever their nature. Laws which violate fundamental rules of natural justice, or those that are absurd or arbitrary cannot be considered law. Nonetheless, the threshold of culpability in imposing the mandatory death penalty for drug-related offences is a matter of policy and is therefore a matter for legislation and not for the courts to decide. The Court distinguished a line of Privy Council cases finding the mandatory death penalty to be unconstitutional, because the constitutions of the jurisdictions from which the appeals originated contained an explicit prohibition against inhuman punishment, which Singapore's Constitution lacks. In addition, though the Constitution of India also does not expressly prohibit inhuman punishment, the Court declined to follow a decision of the Supreme Court of India invalidating the mandatory death penalty for inconsistency with Article 21 of the Indian Constitution, which is similar to Singapore's Article 9(1). Among other things, it took the view that the test for constitutional validity under Article 9(1) is different from the test applied to India's Article 21. Finally, the Court was of the opinion that rules of customary international law cannot be incorporated into the meaning of the word law in Article 9(1) as this is not in accordance with the normal hierarchy of Singapore law, which envisages that customary international law may only be adopted into the common law if it is not inconsistent with existing domestic laws. In any case, there is insufficient state practice to demonstrate that customary international law regards the mandatory death penalty as an inhuman punishment.
The Court of Appeal also held that the mandatory death penalty does not violate Article 12(1) of the Constitution, which states: "All persons are equal before the law and entitled to the equal protection of the law." In its opinion, the differentia used in the MDA to determine whether the death penalty should be imposed for trafficking in diamorphine (heroin) cannot be said to be purely arbitrary, and bears a rational relation to the social object of the Act which is to prevent the growth of drug addiction in Singapore by stamping out the illicit drug trade.
Following this case, the appellant Yong Vui Kong unsuccessfully challenged the process by which the President grants clemency to convicted persons on the advice of the Cabinet. Later, in 2013, his sentence was commuted to life imprisonment in a re-trial after changes to the death penalty laws allowed drug convicts to face a potential life sentence other than death provided they acted as couriers or suffer from mental illnesses.
Trial and subsequent events
The appellant, Yong Vui Kong, was a 19-year-old Malaysian national who was arrested in Singapore on 13 June 2007 and charged with trafficking in of diamorphine (heroin), a Class A controlled drug under the Misuse of Drugs Act ("MDA"). ("MDA"). ("P.P. v. Yong Vui Kong (2009, H.C.)"). Yong told investigators that he had not been aware of the contents of the packages which he was asked to handle, maintaining instead that he had been delivering packages for his boss, a man known as "Ah Hiang", for whom he was working as a debt-collector. Ah Hiang had instructed him not to open the packages, and Yong had acted according to these instructions even though he was suspicious of the contents.P.P. v. Yong Vui Kong (2009, H.C.), para. 3.
Following a trial in the High Court, Yong was found guilty of drug trafficking contrary to section 5(1)(a) of the MDA. Trafficking in more than of diamorphine attracts a mandatory death penalty. The Court was of the view that Yong must have known that he had been carrying drugs.P.P. v. Yong Vui Kong (2009, H.C.), paras. 4–5. Yong instructed his counsel to file an appeal, but later asked that the appeal be withdrawn. His case was eventually taken over by another lawyer, M. Ravi, who had been instructed by Yong's brother. In the meantime, Yong had also petitioned the President of Singapore for clemency. This was rejected on 20 November 2009 and Yong's execution was set for 4 December 2009. Ravi then filed an urgent motion to challenge the constitutionality of the mandatory death penalty prescribed by the MDA. The motion was heard by Justice Woo Bih Li, who granted a stay of execution pending a decision by the Court of Appeal of Singapore..Yong Vui Kong v. Public Prosecutor 2 S.L.R. [Singapore Law Reports] 192 at 195–196, paras. 3–5, Court of Appeal (Singapore).
In the hearing before the Court of Appeal, Yong was allowed to pursue his appeal. The Court was of the opinion that the initial withdrawal of the appeal was a nullity as Yong had failed to appreciate the fact that he could have proceeded with his appeal on points of law, namely, challenging the compatibility of the mandatory death penalty with Articles 9(1) and 12(1) of the Constitution of Singapore..Yong Vui Kong v. P.P. (2010, C.A.), pp. 202–204, paras. 25–28.
Legal issues In the present case before the Court of Appeal, Yong challenged the constitutionality of the mandatory death penalty imposed by the MDA on the grounds that it violated Article 9(1) and/or Article 12(1) of the Constitution.
Article 9(1) challenge
Article 9(1) of the Constitution reads: "No person shall be deprived of his life or personal liberty save in accordance with law." The word law is defined in Article 2(1), which states that "'law' includes ... the common law in so far as it is in operation in Singapore".
The Court of Appeal noted that if the appellant's challenge on the basis of Article 9(1) was successful, it would mean that mandatory death penalty provisions in statutes other than the MDA would also be unconstitutional, such as the penalties of the following offences: (Yong Vui Kong (substantive appeal)"). Murder, in section 302 of the Penal Code.. Using or attempting to use arms, in section 4 of the Arms Offences Act.. Using or attempting to use arms to commit or attempt to commit specified offences, in section 4A of the Arms Offences Act. Having or carrying, without lawful excuse and without lawful authority, any firearm, ammunition or explosive in a security area, in section 58(1) of the Internal Security Act..
Mandatory death penalty constitutes inhuman punishment Yong's first argument was that the word law in Article 9(1) did not include laws that imposed inhuman punishments. Since the mandatory death penalty was inhuman, the provisions in the MDA that imposed a mandatory death sentence ran afoul of the Constitution. The argument hinged on the fact that the mandatory death penalty has long been held to be an inhuman punishment in a string of cases from Belize,. Saint Christopher and Nevis,. Saint Lucia,. Barbados,. Jamaica,. Trinidad and Tobago,. the Bahamas,. Grenada,. the United States,Woodson v. North Carolina , Supreme Court (United States). Uganda,Attorney General v. Kigula, Constitutional Appeal No. 3 of 2006 (21 January 2009). Malawi,Kafantayeni v. Attorney General MWHC 1, Constitutional Case No. 12 of 2005 (27 April 2007), H.C. (Malawi). and India.Mithu v. State of Punjab A.I.R. 1983 S.C. 473, Supreme Court (India). The Court of Appeal indicated that many of the cases had been distinguished in its earlier decision Nguyen Tuong Van v. Public Prosecutor (2005),Nguyen Tuong Van v. Public Prosecutor SGCA 47, 1 S.L.R.(R.) [Singapore Law Reports (Reissue)] 103, C.A. (Singapore), archived from the original on 15 November 2010. and that this was merely "traversing old ground".Yong Vui Kong (substantive appeal), p. 508, para. 34. However, the Court did highlight three cases.
The first was the Privy Council case Reyes v. R. (2002), an appeal from Belize. Reyes had shot and killed his neighbour and his neighbour's wife, and had been convicted of two counts of murder. Murder by shooting was a "Class A" murder offence which attracted the mandatory death penalty. The Privy Council held that the mandatory death penalty imposed in this case contravened section 7 of the Constitution of Belize as it was inhuman or degrading punishment. This was because even within the category of "Class A" murders, there were some offenders who were not as morally culpable as the others, since the offence could have occurred in the heat of the moment. To deny the offender a chance to show the court that it would be disproportionate and inappropriate to impose the death penalty on him would thus be to deny his basic humanity.Yong Vui Kong (substantive appeal), p. 514, paras. 48–49.
The second case was the United States Supreme Court decision Woodson v. North Carolina (1976). The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, and the Court proceeded on this basis to strike down mandatory death penalty legislation on a 5:4 majority. The reasons given were that the mandatory death penalty imposed a process which did not take into account relevant differences between the offenders and the offence, and excluded from judicial consideration any mitigating factors. The penalty was inhuman as it treated persons convicted of a designated offence "not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death".Woodson, p. 304.
The third case was the Indian Supreme Court judgment Mithu v. State of Punjab (1983). In that case, the appellant, who was under a sentence of life imprisonment, committed murder which attracted the mandatory death penalty under section 303 of the Indian Penal Code 1860.Indian Penal Code 1860 (No. 45 of 1860 ). Similar arguments to those in Woodson were canvassed, namely, that this provision of law deprived the Court of the chance to use its discretion and wisdom and ignored all factors pertaining to the gravity of the offence.Yong Vui Kong (substantive appeal), p. 510, para. 39.
In response to the first challenge to Article 9(1), the Attorney-General Walter Woon submitted that the courts should hold to the established principles in both Ong Ah Chuan v. Public Prosecutor (1980)Ong Ah Chuan v. Public Prosecutor UKPC 32, A.C. 648, [1979–1980] S.L.R.(R.) 710, Privy Council (on appeal from Singapore). as well as Nguyen Tuong Van. His contention was premised on the argument that the Privy Council's decisions in the cases following Ong Ah Chuan and Nguyen Tuong Van did not necessarily have to be followed as the Privy Council "does not dictate human rights standards for the rest of humanity".Yong Vui Kong (substantive appeal), pp. 511–512, para. 42.
Mandatory death penalty contrary to customary international law Yong's second argument was that the word law in Article 9(1) should also be taken to include customary international law. He argued that since customary international law prohibited mandatory death penalty sentences as inhuman, the MDA provisions also violated Article 9(1). Yong's argument was based on the fact that there are a diminishing number of states which still retain the mandatory death penalty for drug-related offences.Yong Vui Kong (substantive appeal), p. 512, para. 43.