Misuse of Drugs (Amendment) Bill

Mr Speaker, Sir, I will deal with some of the issues raised relating to the death penalty, in particular questions on "substantive assistance", and questions on the diminished responsibility test.

Members who spoke agreed that the drug problem is a serious one. Mr Laurence Lien is opposed to the death penalty on principle. All the other Members and NMPs agreed that the death penalty is appropriate to deal with the drug problem. So, in this House, we have near unanimous agreement on the death penalty, but some differences in how it should be applied.

Ms Sylvia Lim, Mr Pritam Singh, Mr Liang Eng Hwa and Asst Prof Eugene Tan have urged for more judicial discretion on application of the death penalty. These suggestions are well-intentioned.

My view is this. The starting position is that the courts should have discretion in sentencing – that is eminently correct, and sensible and right. Most of us will agree with that. If you want to make a sentence mandatory, and remove the discretion of the court, there must be good reasons.

How, then, should we approach the question of the death penalty for serious drug offences?

If we focus only on the trafficker, and ask if mercy should be shown, the answer is obvious – it must be yes. No one can disagree.

But that is not the only question, or even the primary question. The correct questions are: what is the nature of the drug menace – what is the nature of the beast? What are the risks we face as a country, and as a society? How do we deal with these risks? What is our approach? What happens if we completely remove the mandatory death penalty and replace it with a death penalty to be imposed at the discretion of the Courts? Are we prepared for the trade-offs and the risks? The answers depend on the level of risk and the cost to society that you are prepared to accept.

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What is the context against which we assess those risks? Globally, the number of drug users has increased from 180 million to 210 million in the last 10 years. The number of deaths due to drugs has increased from around 100,000 to over 260,000. The mean age for deaths due to drugs is in the mid-30s.

The fight worldwide against drugs is being lost. In Central America, levels of violence are rising, fuelled by transnational organised crime and drug trafficking. The region is now home to the highest homicide rates in the world. In Afghanistan, development is being hindered by the highest rates of opiate prevalence in the world. For West and Central Africa, about half of the cocaine trafficked through the region now remains there, jeopardising hard-won gains in sustainable development and good governance. All this is from the UN Secretary-General.

The regional situation is also not pretty. In Malaysia, the number of drug abusers stand at 350,000, and is expected to exceed 500,000 by 2015. In Indonesia, 1.3 million 10- to 19-year-olds have experimented with drugs, and more than 500,000 use drugs on a regular basis.

Drug labs are proliferating in the region – Deputy Prime Minister spoke on this. Drug syndicates are sophisticated MNCs – well financed, international networks, very smart people at the helm, making huge profits, access to people who are willing to act as couriers.

Singapore is a highly attractive destination. We are a rich country. People can pay for drugs. We are a transport and tourism hub – 500,000 persons pass through or enter Singapore each day; 182 million each year. It is logical to use Singapore as a drug hub.

The impact of drugs in Singapore − two thirds of the local prison population are drug offenders. Eighty percent have drug antecedents. This is the same everywhere – drug offenders usually commit other crimes. There is also the impact on families, victims of offenders, on society at large. Tens of thousands every year. The number of youth abusers is increasing, worryingly.

We take comprehensive measures against both supply and demand, as explained by the Deputy Prime Minister. We have education, early intervention for young abusers. Strict border controls, tough enforcement. A tough regime for first and second time abusers, where they receive counselling and rehabilitation. After the third time, they are sent to long-term imprisonment. The CLTPA regime deals with syndicate members where witnesses are fearful to testify. Across the board, we have draconian punishments: caning, imprisonment, the death penalty.

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The result: we are one of the few countries in the world where the drug menace has been fought reasonably successfully – not won, you can never say that these fights are won – but reasonably successfully, and certainly not lost. The number of drug abusers has gone down since 1994, even discounting the Subutex effect – these are lives saved, families saved, which are all the more remarkable if you consider the global trends of increasing abuse rates. Global trends are going up, ours is downward. Drug kingpins avoid Singapore; there is no substantive production here. Couriers think twice before trying their luck, and they try to keep below the capital threshold – we know this from intelligence. We are not a transhipment hub, despite our connectivity. Drug prices are comparatively high; purity levels comparatively low.

This is the context. The question of whether the mandatory death penalty is needed has to be seen in this context. We must ask ourselves: why do drug kingpins avoid Singapore? Why is it difficult to get people to traffic into Singapore? Why is it that traffickers often and deliberately keep below the limits for capital punishment? We are a lucrative target. Remove the mandatory death penalty, and what will be the consequence? Would there be more people willing to be couriers?

Remember, we are dealing with drug lords who are very smart people with lots of money, no scruples, and who will mercilessly exploit others. Our stance on the death penalty is widely known – in Singapore, traffickers face the death penalty. That is a powerful message. That creates a difficulty in recruiting couriers. It will not be easy to get people to willingly risk their lives. Not impossible, but not easy. When you remove the mandatory death penalty, you remove that fear. Are we willing to take the risk of many more becoming willing couriers? You have seen the data. We potentially have millions in the region who could be persuaded to traffic drugs to Singapore. Lots of drug addicts, lots of people who need the money.

On this point, a couple of Members, I think it is Ms Lim and Mr Singh, have cited the views of the former Attorney-General, Prof Walter Woon, which were made at a forum on death penalty. At that forum, Prof Woon made some remarks about the mandatory death penalty and how it warps prosecutorial discretion, and both Members referred to that. He went on to describe the prosecution as having a heavy burden in determining the appropriate charge when a person is killed.

I have specifically asked Prof Woon about his comments and he has confirmed the following in writing: (a) he was illustrating a general point about the responsibilities of the prosecution; (b) he has always drawn a distinction between the exercise of prosecutorial discretion in drug cases from that in murder cases; (c) he has stated this previously in public, in interviews and talks; (d) his view is that for murder cases under section 300, it is better that the Courts have the discretion.

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For drug cases, Prof Woon's view is that the discretion is better placed with the Public Prosecutor for the following reasons: (a) the assessment would have to be made on intelligence not within the knowledge of the court or often inadmissible in court; (b) the Public Prosecutor will be better placed to take note of broad public policy considerations; (c) it is often the case that an accused is willing to plead guilty, but will not do so if the charge carries the possibility of capital punishment, even if it is discretionary.

Prof Woon did express himself in broad terms during the forum, and he did not specifically draw the distinction between drugs and homicide when making those comments. But he has since told me that his precise views are as he has set out to me, and that he has always held these views and continues to hold these views now. He confirms that his views have been expressed previously, in public. And he emphasises that his remarks at the forum were directed at murder, not drugs, though he did not explicitly say so.

Prof Woon, when he was the Attorney-General, had expressed similar views to me in the context of the Public Prosecutor's discretion in dealing with drug cases. This is a topic on which we have had several discussions, because as I have said to this House before, MinLaw and MHA constantly look at the death penalty, and the Courts and the AGC are people we consult regularly on this issue. And the current Attorney-General and the current Chief Justice also take similar views.

In the context of drugs, the suggestion to give discretion to judges looks attractive at first sight: maintain the death penalty for deterrence, but allow for mercy in individual cases.

As I said earlier, this is something that concerns us deeply because, like the Members who have spoken on this, our preference is also to give more discretion to the Courts. We have looked at this carefully and discussed it with the agencies and the Attorney-General.

We have also consulted Chief Justices Chan Sek Keong and Sundaresh Menon, to see if this can be done, if it is possible, if it is practicable. Their view is this. If Parliament deems it necessary to make a drug offence punishable with the death penalty, it is preferable that the statute sets out as clearly as possible the circumstances under which the death penalty ought to be imposed. While the Courts will of course exercise any discretion in a principled and consistent manner, their view is that it is best that the legislature define in the clearest possible terms when the ultimate punishment is justified. That is the responsibility of the legislature, which is elected by the people.

I think Members can understand why the Judiciary is asking that that should be the framework. So let us take it from there. How would we craft the statute to give more discretion to the courts?

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First, the quantum, 15 grams of diamorphine – do we agree this is a serious threshold, or do we say it should be some other threshold? Once you agree on the threshold, and if the elements of offence are made out, that is, trafficking over 15 grams, then how would you have the court exercise discretion? I will be happy to hear Members' views on this. Can we conceive of a discretionary sentencing approach which maintains the deterrent value of the death penalty across the whole spectrum of drug trafficking activities?

With the best of intentions, it will be difficult – I think it is impossible. That is the view which we came to after discussing and considering the matter carefully, with the agencies, with the various Attorneys-General, and with the courts.

Consider what factors you will set out for exercise of discretion: would you say age, youth? Would you say young mothers? Would you say impecuniosity? Would you say, see if the trafficker was baited with love? Or would you look at other family circumstances?

You set out the criteria, whatever they are, and the drug lords will send you any number who will satisfy those criteria, who will perfectly fit the profile. This is because you are looking at background factors; the circumstances of the crime become less important.

So, while it is attractive in broad terms to talk about giving discretion, look at it in detail and see whether it is workable. For murder, yes. You can look at it to see if it's a crime of passion, you can look at the motive, you can look at the circumstances. How do you do that for drug trafficking? How do you do it in a way that does not affect the fundamental deterrent effect of the death penalty?

So, let us be very clear. You go down this route – in effect you might have de facto abolition of the death penalty. So, pose the question in realistic terms: do you want a complete elimination or at least a substantial reduction in the deterrent value of the death penalty? I am not saying you cannot put forward that position. But let us be clear-minded and hard-headed about this, and look at the hard issues: on the one hand, the drug issues and the risks which we face, and on the other hand, whether we have the death penalty.

You weigh the risks, you decide. Prof Woon said at the same forum I referred to: "Judges very seldom go for the maximum. In this, they are like University lecturers who never give you the maximum marks. They sort of hover around the centre. There is a tariff for most cases." Quite understandable – Judges are reluctant to impose the ultimate sentence. And you also have the drug lords sending you the couriers who fit the criteria for not imposing the death penalty. What is the result? De facto abolition.

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So, those are the terms of the debate. And in these terms, then, the question for Members is: is this a risk you are prepared to take, to remove a key component of our strategy, in light of the global situation?

And a word about couriers. There are many misconceptions about this. Let us be clear. They do this for money. They know what they are doing is wrong. They hide the drugs in secret compartments, all sorts of places, and try and traffic through our checkpoints. Fifteen grams is not little. It is 2,200 straws – you can feed the addiction of 300 abusers for a week.

Let me now move on to cooperation, a question that has been raised by quite a number of Members. This is the first exception – the couriers who have substantively assisted CNB in disrupting drug trafficking activities could be spared capital punishment.

In looking at this, if the question was, and again looking at the speeches, it seems to me that Members may have asked themselves the question: what can we do to help couriers avoid capital punishment? If that was the question, we do not need to make these amendments. The solutions are very easy.

The issue is not what we can do to help couriers avoid capital punishment. It is about what we can do to enhance the effectiveness of the Act in a non-capricious and fair way without affecting our underlying fight against drugs. Discretionary sentencing for those who offer substantive assistance is the approach we have taken. For those who cannot offer substantive assistance, then the position is as it is now.

Some Members have asked: would it be better to say that the courier has done his best, that he has acted in good faith − should he not qualify? I think Mr Edwin Tong, Mr Alvin Yeo, Asst Prof Eugene Tan, Mr Laurence Lien, Mrs Lina Chiam, Ms Faizah Jamal, all made this point.

The short answer is that it is not a realistic option because every courier, once he is primed, will seem to cooperate. Remember we are dealing not with an offence committed on the spur of the moment. We are dealing with offences instigated by criminal organisations which do not play by the rules, which will look at what you need, what your criteria are and send it to you. So, if you say just cooperate, just do your best, all your couriers will be primed with beautiful stories, most of which will be unverifiable but on the face of it, they have cooperated, they did their best. And the death penalty will then not be imposed and you know what will happen to the deterrent value. Operational effectiveness will not be enhanced. Will we be better off? Will we be worse off?

As I started out saying, in these things, it is not as if there is one clear answer one way or another. It is what we in this House consider to be important for our society, after weighing the costs and the benefits. If you believe that couriers, even if they tell us stories, ought to go free, then that is a choice we make. But when you make that choice, do not fool yourself that there are no trade-offs.

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Mr Edwin Tong, Asst Prof Eugene Tan and Mr Desmond Lee have also asked: are drug couriers in a position to provide substantive assistance? Fair point. It is a point that was raised extensively during our consultations. Let me throw back the question. Assuming the couriers are not able to help, what should be the penalty? That goes back to the fundamental question: should there be the death penalty for couriers? That is the first hurdle you have to cross. It is a difficult question, but I think Members other than Mr Lien have agreed that there should be the death penalty for couriers. Once you say that, then you will see this change as making an exception to that position. So, only those who qualify for that exception can be spared the death penalty. You then need to be careful about making the exception so wide that the rule itself is seriously qualified.

In any case, CNB's operational assessment is that couriers can give substantive assistance in some cases. Also, the very existence of the mechanism adds friction to the entire drug trafficking network. Every arrested courier is now potentially a lead back to the syndicate. That will make it difficult for the entire organisation. Let us not underestimate the syndicates. They will of course try to work around this in innovative ways. The question for this House is, should we therefore not try this approach?

Mr Desmond Lee also asked if we should recognise substantive assistance in other areas of law enforcement. Substantive assistance by couriers is especially useful in the context of drug trafficking, because of their links back to the syndicate. By contrast, couriers are not uniquely or especially able to assist on combating drug consumption and so on.

Next, on the issue of who decides cooperation and by what criteria. The Bill provides for the Public Prosecutor to assess whether the courier has substantively assisted CNB.

I think Ms Sylvia Lim, Mr Pritam Singh, Mrs Chiam and Ms Faizah Jamal have concerns here. Their view is: it is an issue of life and death – the discretion should lie with the Courts to decide on cooperation.

First, the cooperation mechanism is neither novel nor unusual. Other jurisdictions, like the US and UK, have similar provisions, operated by prosecutors, to recognise cooperation for the purposes of sentencing. For example, Title 18, section 3553(e) of the United States Code provides:

*"Limited Authority To Impose a Sentence Below a Statutory Minimum – Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code."*

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The Courts decide questions of guilt and culpability. As for the operational value of assistance provided by the accused, the Public Prosecutor is better placed to decide. The Public Prosecutor is independent and at the same time, works closely with law enforcement agencies and has a good understanding of operational concerns. An additional important consideration is protecting the confidentiality of operational information.

The very phrase "substantive assistance" is an operational question and turns on the operational parameters and demands of each case. Too precise a definition may limit and hamper the operational latitude of the Public Prosecutor, as well as the CNB. It may also discourage couriers from offering useful assistance which falls outside of the statutory definition.

Ms Lim suggested that if there are concerns about confidentiality, why not have it in camera, although I am not quite sure she used that phrase. The real point is this. Just imagine the scenario. In a case, the defendant argues that he rendered substantial assistance – it is CNB's fault for not dismantling some organisation overseas, it is something which CNB did or did not do, what intelligence agencies and officers did and did not do. And you put the officers on the stand and cross-examine them on their methods, their sources, their thinking. Ask yourself whether that is the best way of dealing with this question. Is that helpful?

Again, is there a risk? Obviously, if you give such powers, there is a risk. But which is the bigger risk? This is something you have to ask yourself. If, over a period of time, the entire modus operandi of the CNB is effectively in the public domain, does it do us any good?

In similar vein, I think Ms Lim, Mr Singh, Mrs Chiam and Ms Jamal, raised or implied the possibility of abuse, or at any rate that the Public Prosecutor may refuse to issue a certificate even though substantive assistance has indeed been provided.

As I said earlier, I accept that the risk identified of course exists.

What we have to assess is: overall, are we better off, if we reduce this risk and the issue is transferred to the Courts? That is a judgement call that is to be made. Is society better off? Which route has greater risks? And take into account the fact that the Public Prosecutor's discretion is not unfettered. It is subject to judicial review, either on bad faith or malice, which is expressly provided for, and of course, unconstitutionality, which goes without saying.

There are also significant institutional incentives for the Public Prosecutor to exercise his discretion properly. Over time, if the Public Prosecutor consistently recognises cases where substantive assistance has been provided, that will obviously encourage more cooperation by couriers. On the other hand, if the Public Prosecutor acts capriciously or inconsistently, the system cannot work. So, over and above the judicial checks, it is really in the Public Prosecutor's interest to operate the system with integrity.

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This is not just the position in Singapore. I have mentioned the US position earlier. Section 3553(e)'s constitutionality has been upheld by a number of federal Courts of Appeals. In the case of US v Huerta (1989), the Court of Appeals for the Second Circuit had this to say:

*"We believe that whether a defendant's cooperation has risen to the level of "substantial assistance" to the government is self-evidently a question that the prosecution is uniquely fit to resolve. Nor do we perceive any danger of misuse of this power. There are significant institutional incentives for the prosecution to exercise sound judgment and to act in good faith in deciding whether to make a Section 3553(e) motion. The government has an interest in encouraging defendants to cooperate with law enforcement efforts. The reasonable use of substantial assistance motions for those who cooperate will make others more likely to do so in the future."*

Let me now move on to the question of false information. Mr Desmond Lee questioned whether couriers may give false information to implicate others. That is one of the reasons why assistance given must be substantive. Any information given will not be used against others unless the Public Prosecutor and CNB are satisfied as to its reliability.

Asst Prof Eugene Tan asked whether the mechanism creates a risk of self-incrimination? There is that risk. But let me throw back the question: what does that mean? Should we, therefore, not have this exception?

If we believe that the DP should be abolished, then I can understand Professor Tan's argument. But if that is not argued, and he is not arguing that, then you have to weigh between sticking to the current position – you prove the actus reus and the mens rea, trafficking in 15 grams or more, and the person faces capital punishment unless he provides substantial assistance. Should you not give him that option?

I think Asst Prof Tan also makes the point: would CNB officers pressure the accused to self-incriminate? That raises questions outside of issues that we are discussing today, as to whether we should or should not have such an exception.

So, really the question is: if the accused knows something, and has to decide between trying to run a false defence that he knows nothing, and telling the truth and assisting the CNB – I do not think Members will argue against giving him an incentive to tell the truth, to help us, and to help himself.

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Ms Sylvia Lim and Mr Desmond Lee asked whether those on death row be given a chance to offer substantive assistance. The answer is yes. The Public Prosecutor will assess what is to be done, in consultation with CNB.

On the second exception on diminished responsibility, some Members spoke on this.

The law in this area has recently been set out by the Court of Appeal in Ong Pang Siew v PP [2011] 1 SLR 60. Our view is that the law has been set out and commonsensical judgments have to be made on the facts. Genuine cases of mental disability are recognised, while, errors of judgements will not afford a defence. And the law is also capable of taking into account the progress of medical science in understanding mental conditions.

Mr Christopher de Souza said the law must be interpreted strictly in its application to drug trafficking. Drug trafficking is a highly purposive and coordinated activity. The legal principles remain the same, however, in assessing whether diminished responsibility is made out.

Ms Jamal and Ms Lim asked: how will low IQ be dealt with? And Ms Lim asked whether we can broaden the defence such that an accused, who does not qualify for a strict definition of diminished responsibility, but who is still vulnerable enough to be exploited, can qualify.

The position is that sufficiently low IQ will constitute an abnormality of mind. As to what level of IQ is sufficiently low, cases have focused on the mental retardation threshold. Whether medical science will move further and whether Courts will accept that, I think that is really not something where I want to pre-empt any development.

Our basic position is that there should be a partial defence for those who suffer from a mental condition which substantially impairs their responsibility and, of course, the Public Prosecutor retains his discretion in borderline cases.