Johari bin Kanadi v PP: Constitutionality of Enhanced Punishment for Subutex Consumption under Misuse of Drugs Act
Johari bin Kanadi and Bahtiar bin Mohd Rahim appealed to the High Court of Singapore on April 25, 2008, against their sentences for consuming Subutex, arguing that enhanced punishment under the Misuse of Drugs Act (MDA) violated their constitutional rights. The High Court, presided over by Justice Tay Yong Kwang, dismissed the appeals, holding that the classification of Subutex as a controlled drug and the subsequent enhanced punishment for repeat offenders did not contravene Articles 9(1), 11(1), or 12(1) of the Constitution. The court found no basis to refer the constitutional questions to the Court of Appeal, affirming the original sentences.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Appeals dismissed.
1.3 Case Type
Criminal
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Appeal against enhanced punishment for Subutex consumption. The court upheld the sentence, finding no constitutional violation in classifying Subutex as a controlled drug.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Respondent | Government Agency | Judgment for Respondent | Won | Gillian Koh Tan of Attorney-General’s Chambers Janet Wang of Attorney-General’s Chambers |
| Johari bin Kanadi | Appellant | Individual | Appeal Dismissed | Lost | |
| Bahtiar bin Mohd Rahim | Appellant | Individual | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Tay Yong Kwang | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Gillian Koh Tan | Attorney-General’s Chambers |
| Janet Wang | Attorney-General’s Chambers |
| S K Kumar | S K Kumar & Associates |
4. Facts
- Johari and Bahtiar were charged under the Misuse of Drugs Act for consuming controlled drugs.
- The charges were related to the consumption of norbuprenorphine and buprenorphine, commonly known as Subutex.
- Subutex was classified as a Class A controlled drug on 14 August 2006.
- Subutex was classified as a specified drug on 1 October 2006.
- Johari had a prior conviction under the Misuse of Drugs Act.
- Bahtiar had been admitted to a Drug Rehabilitation Centre previously.
- The appellants argued that enhanced punishment under s 33A of the MDA was unconstitutional.
5. Formal Citations
- Johari bin Kanadi and Another v Public Prosecutor, MA 56/2007, 57/2007, Cr M 14/2007, [2008] SGHC 62
6. Timeline
| Date | Event |
|---|---|
| Johari convicted under Section 8(b)(ii) of the Misuse of Drugs Act. | |
| Bahtiar admitted to Sembawang Prison/Drug Rehabilitation Centre. | |
| Bahtiar admitted to Sembawang Prison/Drug Rehabilitation Centre. | |
| Buprenorphine and norbuprenorphine included as Class A controlled drugs under the Misuse of Drugs Act. | |
| Buprenorphine and norbuprenorphine classified as specified drugs under the Misuse of Drugs Act. | |
| Bahtiar's urine specimens found to contain buprenorphine. | |
| Johari's urine specimens found to contain norbuprenorphine. | |
| High Court dismisses appeals. |
7. Legal Issues
- Violation of Constitutional Rights
- Outcome: The court held that there was no violation of Articles 9(1), 11(1), or 12(1) of the Constitution.
- Category: Constitutional
- Sub-Issues:
- Retrospective punishment
- Unequal treatment under the law
- Deprivation of personal liberty
- Related Cases:
- [1980-1981] SLR 48
- [1998] 2 SLR 410
- Discretion of Subordinate Court to Refer Constitutional Question
- Outcome: The court held that the subordinate court has discretion whether or not to stay proceedings when an application is made before it under s 56A of the SCA.
- Category: Procedural
- Sub-Issues:
- New and difficult legal issues
- Previously dealt with by superior courts
- Related Cases:
- [1994] 3 SLR 662
- [1996] 3 SLR 263
- [1997] 1 SLR 123
- [1995] SGHC 97
- Enhanced Punishment for Repeat Drug Offenders
- Outcome: The court held that s 33A does not require an offender to have an antecedent relating to the same drug.
- Category: Substantive
- Sub-Issues:
- Application of s 33A of the MDA
- First-time Subutex consumption
- Relevant antecedents under s 33A
- Related Cases:
- [1993] 3 SLR 908
- [1999] 1 SLR 714
- Questions of Law of Public Interest
- Outcome: The court found the three questions posed not to be of public interest within the meaning of s 60 SCJA.
- Category: Procedural
- Sub-Issues:
- Settled or novel points of law
- Application or extension of established principles of law
- Related Cases:
- [1990] SLR 301
- [1991] SLR 235
- [2000] 2 SLR 358
- [2005] 3 SLR 648
8. Remedies Sought
- Setting aside of sentences
- Sentencing under s 33 of the MDA as first-time offenders
- Constitutional Reference to the High Court
9. Cause of Actions
- Violation of Constitutional Rights
- Appeal against Sentence
10. Practice Areas
- Criminal Law
- Constitutional Law
- Drug Rehabilitation
11. Industries
- Law Enforcement
- Healthcare
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Chan Hiang Leng Colin and Others v PP | High Court | Yes | [1994] 3 SLR 662 | Singapore | Cited for the principle that a subordinate court has discretion whether to refer a constitutional question to the High Court. |
| Liong Kok Keng v PP | High Court | Yes | [1996] 3 SLR 263 | Singapore | Cited for the principle that a subordinate court can decline to refer a case to the High Court if the issues are not new or difficult points of law. |
| Kok Hoong Tan Dennis and Others v PP | High Court | Yes | [1997] 1 SLR 123 | Singapore | Cited for the principle that a subordinate court can decline to refer a case to the High Court if the issues are not new or difficult points of law. |
| Ang Cheng Hai & Others v PP | High Court | Yes | [1995] SGHC 97 | Singapore | Cited for the principle that a subordinate court can decline to refer a case to the High Court if the issues are not new or difficult points of law. |
| Teo Kwee Chuan v PP | High Court | Yes | [1993] 3 SLR 908 | Singapore | Cited to support the proposition that an accused can be liable for enhanced punishment under legislation targeted at repeat offenders, even if the subsequent offence is defined more widely than the predicate offence. |
| PP v Chen Chih Sheng and another | High Court | Yes | [1999] 1 SLR 714 | Singapore | Cited to support the proposition that an accused can be liable for enhanced punishment under legislation targeted at repeat offenders, even if the subsequent offence is defined more widely than the predicate offence. |
| PP v Taw Cheng Kong | Court of Appeal | Yes | [1998] 2 SLR 410 | Singapore | Cited for the principle that there is a strong presumption of constitutional validity of written law. |
| Ong Ah Chuan v PP | Privy Council | Yes | [1980-1981] SLR 48 | Singapore | Cited to address the argument that mandatory minimum sentences are contrary to Article 12(1) of the Constitution. |
| Offen and others | English Court of Appeal | Yes | [2001] 1 Cr App R 372 | England and Wales | Cited by the appellants to support their contention that the DJ ought to have made a reference to the High Court in this case. The court distinguished this case. |
| Abdul Salam bin Mohamed Salleh v PP | High Court | Yes | [1990] SLR 301 | Singapore | Cited for construing the scope of s 60 of the SCJA regarding questions of law of public interest. |
| Abdul Salam bin Mohamed Salleh v PP | Court of Criminal Appeal | Yes | [1991] SLR 235 | Singapore | Cited for the court's discretion whether or not to refer a question to the Court of Criminal Appeal. |
| Ng Ai Tiong v PP | High Court | Yes | [2000] 2 SLR 358 | Singapore | Cited for the principle that the discretion under s 60, SCJA, must be exercised sparingly by the High Court. |
| Cigar Affair v PP | High Court | Yes | [2005] 3 SLR 648 | Singapore | Cited for the principle that a question of law does not constitute a question of public interest just because it involves the construction or interpretation of a statutory provision which is likely to apply to other members of the public. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Misuse of Drugs Act (Cap 185) | Singapore |
| Section 8(b)(ii) Misuse of Drugs Act (Cap 185, 2001 Rev Ed) | Singapore |
| Section 33A Misuse of Drugs Act (Cap 185, 2001 Rev Ed) | Singapore |
| Section 59 of the Misuse of Drugs Act | Singapore |
| Section 37(2)(b) of the Misuse of Drugs Act | Singapore |
| Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 9(1) | Singapore |
| Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 11(1) | Singapore |
| Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 12(1) | Singapore |
| Section 56A(1) Subordinate Courts Act (Cap 321, 2007 Rev Ed) | Singapore |
| Section 60 Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Subutex
- Misuse of Drugs Act
- Enhanced Punishment
- Constitutional Rights
- Ministerial Order
- Controlled Drug
- Specified Drug
- Repeat Offender
- Article 9(1)
- Article 11(1)
- Article 12(1)
- S 33A MDA
- S 56A SCA
- S 60 SCJA
15.2 Keywords
- Subutex
- Misuse of Drugs Act
- Constitutional Law
- Criminal Law
- Singapore
- Drug Offences
- Enhanced Punishment
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Misuse of Drugs Act | 90 |
| Criminal Law | 80 |
| Criminal Procedure | 80 |
| Constitutional Law | 75 |
| Sentencing | 70 |
| Administrative Law | 30 |
| Asset Recovery | 20 |
16. Subjects
- Constitutional Law
- Criminal Law
- Drug Abuse
- Sentencing