Ong Ah Chuan v Public Prosecutor
Court 3 in Middlesex Guildhall, the normal location for Privy Council hearings.
Court	Privy Council
Full case name	Ong Ah Chuan and another v Public Prosecutor
Decided	15 October 1980
Citation	[1979–1980] S.L.R.(R.) 710
Case history
Prior action	ADD LATER
Related actions	Teo Soh Lung v. Minister for Home Affairs [1989] 1 S.L.R.(R) 461, H.C.; [1990] 1 S.L.R.(R) 347, C.A.; Cheng Vincent v. Minister for Home Affairs [1990] 1 S.L.R.(R.) 38, H.C. ADD LATER
Court membership
Judges sitting	Lord Diplock,Lord Keith of Kinkel, Lord Scarman and Lord Roskill.
Case opinions
Whether the mandatory death penalty for trafficking drugs beyond specified minimum quantities is inconsistent with the Constitution of Singapore

Ong Ah Chuan v Public Prosecutor^[1] is a landmark case in Singapore which deals with the constitutionality of s 15 of the Misuse of Drugs Act 1973 (Cap. 185) ("MDA"),^[2] and the mandatory death penalty under the MDA. The appellants contended that the presumption of trafficking under s 15 of the MDA violated Art 9(1) of the Singapore Constitution ("the Constitution") and that the mandatory death penalty was arbitrary and violated Art 12(1) of the Constitution.^[3]

The appeal was dismissed and the judgment by the Privy Council clarified Singapore's position on several matters. It explained that "law" in Art 9(1) includes fundamental rules of natural justice.^[4] Also, the court held that Art 12(1) did not prohibit differentiation between classes of people, but it required that "like should be compared with like".^[5] The court also laid out the "reasonable relation" test in determining if a legislation was in breach of Art 12(1).^[6]

The case arose as an appeal by the appellants, Ong Ah Chuan and Koh Chai Cheng, to the Privy Council , against their conviction of trafficking by the Court of Criminal Appeal.^[7]

Ong Ah Chuan was charged for trafficking 209.84g of heroin under s 3 of the MDA.^[8] The police trailed the appellant and eventually arrested him along Bukit Timah Road.^[9] The police searched his car and subsequently discovered heroin in it.^[10] Having found that the appellant was transporting the drugs, his act fell under the definition of "traffic" and he was charged accordingly.^[11]

Koh Chai Cheng was charged for trafficking a total of 1,256g of heroin from Malaysia to Singapore.^[12] The appellant brought the heroin into Singapore for purposes of selling to a buyer, who was actually a police informer.^[13] The appellant was arrested when he was about to drive away in his car and the heroin was found in the boot of his car.^[14] Similar to Ong Ah Chuan, Koh Chai Cheng was also charged for trafficking heroin.^[15]

The case was first brought before the High Court. The accused, Ong Ah Chuan, admitted possession of the drugs found in his car, but argued that it was merely for the purpose of his personal consumption at Pulau Ubin, an offshore island, where he was going to find employment.^[16] He also claimed in his defence having been found with such a large quantity of diamorphine that it was cheaper to buy it in bulk.^[17]

The trial judge in the High Court dismissed his defence and found that the accused merely invented the story "to escape the consequences of his criminal act".^[18] The accused was convicted and sentenced to death by the High Court.^[19]

The appellant appealed to the Court of Criminal Appeal, raising two new arguments.^[20] He first contended that the rebuttable presumption in s 15 of the MDA was inconsistent with the Constitution.^[21] Additionally, he remonstrated that the provision in s 29 and the Second Schedule for a mandatory death sentence was also inconsistent with the Constitution.^[22]

The Court of Criminal Appeal dismissed his contentions. Subsequently, he appealed to the Privy Council.

Three issues were raised by the Counsel for the Appellant when the case went before the Privy Council:

1. Whether the lower court was wrong in construing the presumption of trafficking under s 15 of the Misuse of Drugs Act.^[23]
2. Even if the presumption of trafficking, under s 15 of the Misuse of Drugs Act (MDA), was validly construed, whether the presumption was not “in accordance with law” as set out in Art 9(1) of the Singapore Constitution, and was thus unconstitutional.^[24]
3. Whether the mandatory nature of capital punishment, for offences as broadly drawn as that of trafficking (created by s 3 of the Drugs Act), 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 Art 9(1).^[25] The second was whether the mandatory nature of capital punishment was unconstitutional because it contravened Art 12(1) of the Singapore Constitution.^[26]

The appellant’s first submission was that the lower court had erred in finding that the drugs found in the accused's possession was for trafficking purposes under s 15 of the MDA.^[27] This argument was rejected by the Privy Council.

It was held that in Singapore, the offences of drug possession and drug trafficking are distinct from each other.^[28] Drug trafficking is an offence under s 3 of the MDA.^[29] Drug possession, on the other hand, is an offence under s 6 of the MDA.^[30] The cases of Poon Soh Har v. Public Prosecutor^[31] and Seow Koon Guan v. Public Prosecutor^[32] were cited as evidence of Singapore courts upholding this distinction.^[33] Where the accused was found to be transporting controlled drugs, it was held that the transporter’s purpose would determine whether the offence was one of drug possession or drug trafficking.^[34] Trafficking entailed the moving of drugs for the purpose of transferring possession from the mover to some other person, whether this purpose was achieved or not.^[35]

It was observed by the Privy Council that s 15 of the MDA assigns various levels of quantity to certain controlled drugs, such as 2g for heroin.^[36] On securing proof that the accused possessed more than 2g of heroin, the courts could adopt a rebuttable presumption that such possession was for trafficking purposes, pursuant to s 3 of the MDA. It would be for the accused to rebut the presumption by proving that the possession of drugs above the limits set out under s 15 was not for trafficking purposes.^[37] Acquittal from the offence of drug trafficking could be secured if the accused could prove that the conveying of the drugs from one place to another was for the purpose of personal consumption.^[38]

His Lordship explained that the rationale for the s 15 presumption was the difficulty in proving the purpose of trafficking; in such cases dealing with drug trafficking, the strongest attainable evidence was likely to be the act of transporting the drugs.^[39] Regardless, Lord Diplock held that even in the absence of s 15, it could be inferred that the transportation of a large quantity of drugs was for trafficking purposes.^[40] As a matter of common sense, the larger the quantity, the more likely it is for trafficking.^[41]

Therefore, the appellant’s argument that the Court of Criminal Appeal had erred in construing the presumption under s 15(2) of the MDA was rejected.^[42]

Counsel for the Appellant’s second argument was that even if the Court of Criminal Appeal had not erred in construing the presumption under s 15 of the MDA, the presumption was inconsistent with Art 9(1) of the Singapore Constitution.^[43]

In addressing this argument, Lord Diplock first clarified how the Constitution should be interpreted. Referring to the judgment by Lord Wilberforce in Minister of Home Affairs v. Fisher,^[44] he affirmed that a Constitution on the Westminster model should be interpreted not as an Act of Parliament, but as “sui generis”, calling for its own principles of interpretation and suitable to its character.^[45] It was held that fundamental rights in Part IV of the Singapore Constitution should be given a “generous interpretation” so as to give individuals the full measure of the fundamental rights referred to.^[46]

Counsel for the Public Prosecutor argued that “law” in Art 9(1) of the Singapore Constitution included “written law”. It was further argued that “written law” included all acts in force in Singapore.^[47] As such, all acts which were validly passed by Parliament would be consistent with Art 9(1) of the Constitution, even if they deprived life or liberty, because being acts in force in Singapore, they were “in accordance with the law”.^[48]

The Privy Council rejected such an approach to interpreting Art 9(1)’s “in accordance with law”.^[49] Citing Art 4 of the Constitution, the Court maintained that it had the duty to determine whether any Act of Parliament was inconsistent with the Constitution and thus void. A law that is void would not be in force in Singapore, and consequently, will not be grounds for depriving a person of his life or personal liberty under Art 9(1).^[50]

Additionally, in line with the generous approach taken in engaging in constitutional interpretation, the Privy Council interpreted the meaning of “law” (used in contexts such as “in accordance with law” as in Art 9(1)) to refer to a system of law incorporating fundamental rules of natural justice.^[51] This interpretation was, in the court’s view, justified, as “[i]t would have been taken for granted by the makers of the Constitution that the “law” to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules.”^[52]

Elaborating, Lord Diplock stated that one of the fundamental rules of natural justice in the field of criminal law was that a person should not be punished for an offence unless it has been established to the satisfaction of an independent and unbiased tribunal that he committed it.^[53] This required that there be material before the court logically probative of facts sufficient to constitute the offence.^[54]

The Privy Council then moved to consider whether the presumption of trafficking, under s 15 of the MDA, was inconsistent with the Constitution.^[55]

The Appellant had argued that the presumption in s 15 was inconsistent with the fundamental human right of “presumption of innocence”, which was imported into Singapore law by Art 9(1) of the Constitution.^[56]

Lord Diplock rejected this argument, and instead upheld the validity of a presumption of trafficking, where there is proved possession of a quantity of prohibited drugs higher than the minimum specified in s 15 of the MDA.^[57]

It was held that where the difference between an offence and some lesser offence was the particular purpose with which that unlawful act was committed, there was nothing unfair about requiring the accused to prove his actual purpose. This was because the accused alone is armed with the knowledge of the purpose of the illegal act.^[58]

The s 15 presumption of trafficking was also held to be “in accordance with law” because:

1. “Presumptions of this kind are a common feature in modern legislation”;^[59]
2. The presumption of trafficking itself arose from an already illegal act of possession and thus no wholly innocent explanation of the purpose for which the drug was transported is possible;^[60] and
3. The quantity dictated in s 15 is many times greater than the daily dose consumed by drug addicts, fortifying the likelihood of trafficking.^[61]

Since the presumption in s 15 was rebuttable, it did not conflict with any fundamental rule of natural justice, and was logically probative of facts sufficient to constitute the offence.^[62] The presumption of trafficking was thus held to be consistent with Art 9(1) of the Constitution.^[63]

The appellant’s contention, as understood by the Privy Council, was that mandatory capital punishment was not “in accordance with law” because the offence was so broadly drawn that it prevented the court from punishing offenders according to their individual blameworthiness.^[64]

In reply, the Privy Council clarified that it was for the Legislature of Singapore to decide whether there should be capital punishment in Singapore, and what offences should warrant capital punishment.^[65] It also added that there was nothing unusual in a capital sentence being mandatory as:

1. Its efficacy as a deterrent may diminish to some extent if it is not mandatory;^[66]
2. At common law all capital sentences were mandatory;^[67] and
3. Under the Penal Code of Singapore, the capital sentence for murder and offences against the president’s person still is.^[68]

The Court also mentioned in passing that contending the constitutionality of capital punishment was foreclosed by the recognition in Art 9(1) that a person may be deprived of life “in accordance with law”.^[69]

The contention regarding the interpretation of "law" in Art 9(1) of the Singapore Constitution reveals a larger debate between natural law theory and legal positivism. Natural law theorists believe in the existence of universal and immutable principles, discoverable by means accessible to all man, and which forms a higher law to which man-made laws must conform. On the other hand, legal positivists are concerned with the practice of law according to authority and social efficacy.

The former proposes that Art 9(1)'s concept of law be confined to ensuring that a person is not deprived of life or personal liberty unless a fair and just 'procedure' has been followed. The latter suggests that it be extended to ensure that executive action and legislation are 'substantively' fair and just as well.

Victor V. Ramraj, of the Faculty of Law, National University of Singapore, suggests that there are four models of due process: the Formal model, Procedural model, Procedural-privacy model, and the Full substantive model.^[70] Substantive due process, represented by the full substantive model, is concerned with the content or subject matter of a law. Procedural due process, its extreme form represented by the formal model, deals with the manner which a law, administrative justice or judicial task is carried out.^[71]

Natural justice principles originated from its procedural elements, but it is uncertain if its substantive elements are accepted in local law as of yet.Ong Ah Chuan is said to adopt the idea of procedural fairness,^[72] which is currently the most commonly used model. The procedural model is used in countries like India, Canada, South Africa, and the United States. It is based only on procedural fairness and courts go beyond a mere assessment of formal validity and inquire into the procedural fairness of the criminal process. The current legal position is somewhere between legal positivism, as set out in the case of Jabar v Public Prosecutor, and natural law theory. In Jabar, it was held that the law was valid and binding as long as it was validly passed by parliament. Consequently, whether the law was fair, just and reasonable did not matter.^[73]

Academics such as Chin Leng Lim of the University of Hong Kong opine that to accord principles of natural justice an elevated ‘constitutional status’ may cause it to override statutes, which might contradict the constitution which vests the law making power in the legislature.^[74] In the Court of Appeal case of PP v Mazlan bin Maidun & Anor, ^[75] the court found that the right to silence was related largely to the giving of evidence, and that there was no constitutional or statutory provision protecting it. As such, to say it was a constitutional right would be to “elevate an evidential rule to constitutional status” despite the lack of “explicit provision” in the Constitution. To be accorded Constitutional status is a very high elevation, as the Constitution is the supreme law of the land. This, in the opinion of the Court, required a degree of adventurous extrapolation in the interpretation of Art 9(1), which the Court did not consider justified”.

Similarly, academic Andrew J. Harding, disagrees with the idea of “substantive natural justice", because it couldn't be shown that

it was the Privy Council's intent to apply natural justice in a substantive sense, since this would mean that the court can strike down a provision for inconsistency with “natural justice” even if it satisfies the rational nexus test ^[76]

It will be hard to ascertain the limits of judicial power. However, such judicial activism would arguably merely be the judiciary exercising its proper role.^[77] Furthermore, a judicial inquiry arguably involves both substantive and procedural aspects, so both concepts require no differentiation.^[78] This means that the courts will probably look at both the content and procedure of a claim. In the Privy Council case of Haw Tua Tau v PP ^[79] Lord Diplock questioned if the right to silence is a fundamental rule of natural justice. The courts did not decide on this point but said that the accused should not be compelled to submit to hostile interrogation.

In considering whether a particular practice adopted by a court of law offends against a fundamental rule of natural justice, that practice must not be looked at in isolation but in light of the part which it plays in the complete judicial process.^[80]

He also recognizes that “what may properly be regarded by lawyers as rules of natural justice change with the times”.

Ultimately, however, that the courts are still deferential to Parliament's legislative powers. This means that they adopt a respectful attitude towards Parliament's pronouncements. The legislature can by clear words exclude the principles of natural justice in the absence of specific constitutional mention.^[81] In Lo Pui Sang v Mamata Kapildev Dave, it was held in that while the words "save in accordance with law" in Art 9(1) of the Constitution were extravagant, the court could not strike them out.^[82]

The debate regarding the constitutionality of the mandatory death penalty has more often than not turned on the mandatory nature of the death penalty, rather than the death penalty itself. It is often ruled to be inhuman and degrading and hence unconstitutional to that extent.(see below)

The Privy Council in Ong Ah Chuan held that the argument that capital punishment is unconstitutional was foreclosed by Art 9(1) itself because it clearly states that a person can be deprived of his life “in accordance with law”.^[83] The court further noted that “[t]here is nothing unusual in a capital sentence being mandatory.”^[84] Lord Diplock in Ong Ah Chuan also commented that the prerogative of mercy is available to the good Samaritans who find themselves in a drug trafficking case, in support of the mandatory death penalty.^[85] In short, the Privy Council did not find that mandatory death penalty was unconstitutional in this case.^[86]

However, in recent cases like Reyes v The Queen, Regina v Hughes and Fox v The Queen, it will seem like holding on mandatory death penalty in Ong Ah Chuan has been pushed to the sidelines and accorded limited value.^[87][88][89] In this trilogy of cases, the constitutionality of the mandatory death penalty was challenged without arguing about the constitutionality of the death sentence itself; the limelight was placed on the mandatory nature of sentence.^[90] The Privy Council has in these decisions accorded Ong Ah Chuan limited application and called the case “rudimentary” in its holdings with regards to the mandatory death penalty.^[91] The three judgments were handed down on the same day and the following parts will focus on Reyes and Hughes cases.^[92]

In Reyes' case (a case on the Constitution of Belize), Reyes was convicted for a double murder and his appeal judgment was handed down in 2002. He was not allowed leave to appeal against his conviction but was given an appeal on the constitutionality of his sentence.^[93] The Privy Council recognised that the Constitution does provide for prerogative of mercy by vesting in the Cabinet power to alter the punishment.^[94] However, the Privy Council stated that a non-judicial body like the cabinet or the president should not be the one deciding the measure of punishment in a criminal case.^[95] In Singapore, a similar provision for prerogative of mercy is found in Art 22P (grant of pardon), where it proscribes that the Cabinet and President can pardon a convicted person by reviewing the character and record of the offender and the circumstances surrounding the case.^[96] The court’s view that such procedures for prerogative of mercy does not conform to civilised standards of ensuring punishments are not inhuman or degrading.^[97]

The Privy Council also firmly, albeit not expressly, worked around Lord Diplock's holding that Indian and American judgments afforded little guidance to the constitutionality of the mandatory death penalty (in Haw Tua Tau v PP which applied Ong Ah Chuan).^[98][99] The court in reviewing Lord Diplock’s argument redressed the situation of which international laws should be considered in Singapore’s case.

On the Universal Declaration of Human Rights ("UDHR"), as Singapore has been a United Nations member state since 1965, Singapore is obliged to adopt the UDHR, especially Art 3 (life and liberty), Art 5 (inhuman and cruel punishment) and Art 10 (fair hearing).^[100]

Furthermore, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) ("ECHR") applied to Singapore from 1953 till when Singapore entered Malaysia. The courts professed that Art 2 (right to life), Art 3 (inhuman punishment) and Art 6 (fair hearing), should have been reasonably incorporated by Singapore’s constitutional drafting process.

“It could not have been the intention of the framers of our Constitution to diminish the rights which Singaporeans as colonial subjects were entitled to enjoy, and to lose it on becoming independent citizens of a Republic with censorial power in their hands after freedom has taken effect.”^[101]

Reading all of these articles together, it is the court’s view that when a defendant is given no opportunity to mitigate, as long as convicted, is against Art 9(1).^[102]

The Constitution of Saint Lucia was at consideration in Hughes. Hughes was convicted of one murder, the Board allowed him leave to appeal against the sentence of death passed on him.^[103] Under the Criminal Code of Saint Lucia, s 178 is similar to Singapore’s s 302.^[104] Section 178 of the Criminal Code of Saint Lucia as revised in 1992 reads as such:

178. Whoever commits murder is liable indictable to suffer death

It was held by the Privy Council that this section created a mandatory nature for the death penalty. This forced the infliction of the punishment in all cases of conviction.^[105] The death penalty in this case was quashed.^[106] The defendant’s counsel in referring to Ong Ah Chuan’s case dismissed it by saying that it did not consider Indian or American authorities.^[107]

Furthermore, the courts again pointed out that judges should be given the role of ascertaining the measure of punishment. Essentially, they reason that the judges have heard the cases, they have the relevant knowledge and experience and their decisions are subjected to appeal. The difference between letting a judge decide the sentence instead on a non-judicial body is even more pertinent when the sentence to be implemented is one that distinguishes between life and death.^[108]

Adding all the precedents and elements together, it was clear in Hughes’ case that the court found death penalty to be inconsistent with Art 9(1) (or its equivalent in other countries) to the extent that its mandatory nature makes it disproportionately inhuman and degrading.^[109]

The academics also point out that in Ong Ah Chuan, Art 162 was not brought to the attention of the Privy Council. This means that the UDHR and ECHR which were signed while Singapore was still a colony was not deliberated as within the definition of law in Art 9(1); thus the courts in Ong Ah Chuan did not come to a conclusion on this issue.^[110][111]

The academic viewpoints seem to suggest that the Ong Ah Chuan no longer provides much guidance as it has been criticised even by the court which handed down the judgment. K.S. Rajah has proposed, after analysing the recent Privy Council cases, that the courts in Singapore have the power by virtue of Art 162 to construe s 302 of the penal code as non-mandatory in order to bring it “into conformity with this Constitution”.^[112] In addition, these recent cases also suggest that Singapore’s courts should slowly shift away from relying on Ong Ah Chuan and use the power they have under Art 162.^[113] However, whether the UDHR and the ECHR are existing laws within the meaning of Art 162 remains to be judicially determined by the courts in Singapore; currently the local courts are opened to continue applying the case of Ong Ah Chuan since it has not been expressly overruled within this jurisdiction.^[114]

• Article 9 of the Constitution of Singapore
• Capital punishment in Singapore
• Common law
• Constitution of Singapore
• Criminal law of Singapore
• Drug prohibition law
• Law of Singapore
• Misuse of Drugs Act (Singapore)
• Natural justice

• Haw Tua Tau v PP [1981–1982] S.L.R(R) 133
• Jabar v. Public Prosecutor [1995] S.L.R. 617
• Kulasingham v Commissioner of Lands, Federal Territory [1982] 1 MLJ 204
• Lo Pui Sang v Mamata Kapildev Dave [2008] S.L.R. 754
• Minister of Home Affairs v. Fisher [1980] A.C. 319 at 329
• Ong Ah Chuan v. Public Prosecutor [1979–1980] S.L.R.(R.) 710
• Poon Soh Har v. Public Prosecutor [1977–1978] S.L.R.(R.) 97
• Reyes v The Queen [2002] U.K.P.C 11, [2002] 2 A.C. 235.
• Regina v Hughes [2002] U.K.P.C. 12; [2002] 2 A.C. 259.
• Seow Koon Guan v. Public Prosecutor [1977–1978] S.L.R.(R.) 287

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