Yong Vui Kong v Attorney-General: Judicial Review of Clemency Process

In Yong Vui Kong v Attorney-General, the High Court of Singapore dismissed Yong Vui Kong's application for leave to seek judicial review of the clemency process under Article 22P of the Constitution. Yong, who was sentenced to death for drug trafficking, argued that the clemency process was flawed due to apparent bias and that the President's discretion was improperly fettered. The court held that the clemency process is not justiciable on the grounds raised, finding that the power to grant pardons resides with the Cabinet, not the President, and that there was no evidence of pre-determination or a right to access materials before the Cabinet.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Application dismissed

1.3 Case Type

Criminal

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

The High Court dismissed Yong Vui Kong's application for judicial review of the clemency process, holding it non-justiciable under Article 22P.

1.7 Decision Date

12 August 2010

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Attorney-General	Respondent	Government Agency	Application dismissed	Won	David Chong of Attorney-General’s Chambers Shawn Ho Hsi Ming of Attorney-General’s Chambers Tan Shin Yi of Attorney-General’s Chambers
Yong Vui Kong	Applicant	Individual	Application dismissed	Lost	M Ravi of L F Violet Netto

3. Judges

Judge Name	Title	Delivered Judgment
Steven Chong	Judge	Yes

4. Counsels

Counsel Name	Organization
David Chong	Attorney-General’s Chambers
Shawn Ho Hsi Ming	Attorney-General’s Chambers
Tan Shin Yi	Attorney-General’s Chambers
M Ravi	L F Violet Netto

4. Facts

Yong was convicted of trafficking in 47.27g of diamorphine under s 5(1)(a) of the Misuse of Drugs Act.
Yong was sentenced to death by the High Court on 14 November 2008.
Yong filed and then withdrew his appeal against conviction and sentence.
Yong petitioned the President for clemency on 11 August 2009, which was rejected on 20 November 2009.
Mr. Shanmugam made statements regarding Yong's case and the government's policy on the death penalty.
Yong argued that the Minister’s Statement as well as the press release by the Ministry of Law demonstrate that the Cabinet had pre-determined the outcome prior to receipt of his clemency petition.

5. Formal Citations

Yong Vui Kong v Attorney-General, Originating Summons No 740 of 2010, [2010] SGHC 235
PP v Yong Vui Kong, , [2009] SGHC 4
Yong Vui Kong v Attorney-General, Civil Appeal No 144 of 2010, [2011] SGCA 9

6. Timeline

Date	Event
2008-11-14	Yong was sentenced to death by the High Court
2008-11-27	Yong filed a notice of appeal against conviction and sentence
2009-04-23	Yong notified the Court of Appeal of his intention to withdraw his appeal
2009-04-29	Yong withdrew his appeal
2009-08-11	Yong petitioned the President for clemency
2009-11-20	Yong’s petition for clemency was rejected by the President
2009-11-30	Mr Ravi filed a criminal motion to seek leave to appeal to the Court of Appeal
2009-12-03	Order issued to grant a temporary respite against the carrying out of the death sentence on Yong
2009-12-08	The Court of Appeal granted Yong leave to appeal against his sentence and a stay of execution
2010-03-15	The appeal was heard by the Court of Appeal
2010-05-09	Local newspapers carried reports quoting Mr K Shanmugam, the Minister of Law and the Second Minister for Home Affairs
2010-05-14	The Court of Appeal delivered its judgment dismissing Yong’s appeal
2010-07-09	The Ministry of Law issued a press release
2010-07-21	This application was brought
2010-08-13	Judgment reserved
2010-08-26	Deadline for Yong to file his fresh petition for clemency
2011-04-04	Appeal to this decision was dismissed by the Court of Appeal

7. Legal Issues

Justiciability of Clemency Process
- Outcome: The court held that the clemency process is not justiciable on the grounds raised by Yong.
- Category: Substantive
- Related Cases:
  - [1976] AC 239
  - [1996] 1 AC 527
  - [2001] 2 AC 50
  - 1981 (1) SCC 107
  - [1985] 2 MLJ 385
  - [1986] 1 MLJ 494
  - [1988] 1 MLJ 64
Apparent Bias
- Outcome: The court held that apparent bias is not an available ground on which to review the clemency process.
- Category: Procedural
- Related Cases:
  - [2007] 1 SLR(R) 85
Pre-determination
- Outcome: The court found no evidence of pre-determination of Yong’s imminent petition.
- Category: Procedural
Right to Information
- Outcome: The court held that there is no basis for a substantive right to the materials which will be before the Cabinet when it advises the President on the clemency petition.
- Category: Procedural
Discretion of President vs. Cabinet
- Outcome: The court held that the power to grant pardons under Article 22P is exercised by the Cabinet, and not the President, who has no discretion in the matter.
- Category: Substantive

8. Remedies Sought

Declaration that the President has the discretion to decide whether to grant Yong’s petition for clemency.
Prohibitive order enjoining the President from abdicating his authority to the Cabinet.
Order enjoining the President from fettering his discretion to grant or refuse Yong’s petition for clemency.
Prohibitive order enjoining the Director of Prisons from executing Yong and granting Yong an indefinite stay of execution.
Order that Yong be entitled to be pardoned or is alternatively entitled not to be deprived of his life because the conduct of the Minister has irreversibly tainted the clemency process with apparent bias.
Order that the Cabinet is disqualified from taking further part in the clemency process.
Order that Yong is entitled not to be deprived of his life on account of being deprived of the possibility of a fair determination of the clemency process.
Order that Yong is entitled to see all the materials that will be before the Cabinet on his clemency petition.
Order that Yong is entitled not to be deprived of his life on account of having suffered grave injustice as a result of the actions of the President and the Cabinet.

9. Cause of Actions

Judicial Review

10. Practice Areas

Criminal Appeals
Public Law

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Chan Hiang Leng Colin v Minister for Information and the Arts	High Court	Yes	[1996] 1 SLR(R) 294	Singapore	Cited for the test of granting leave under Order 53.
IRC v National Federation of Self-Employed and Small Businesses Ltd	House of Lords	Yes	[1982] AC 617	England	Cited for the test of granting leave for judicial review.
Pang Chen Suan v Commissioner for Labour	Court of Appeal	Yes	[2008] 3 SLR(R) 648	Singapore	Cited for the proper approach to be adopted for ex parte applications.
Chai Chwan v Singapore Medical Council	High Court	Yes	[2009] SGHC 115	Singapore	Cited for examining substantive arguments at the leave stage.
Re Application by Dow Jones (Asia) Inc	Unknown	Yes	[1987] SLR(R) 627	Singapore	Cited for the point that declaratory relief can only be obtained by way of ordinary action.
Yip Kok Seng v Traditional Chinese Medicine Practitioners Board	High Court	Yes	[2010] SGHC 226	Singapore	Cited for the point that declaratory relief can only be obtained by way of ordinary action.
R v Home Secretary, ex p Bentley	Divisional Court	Yes	[1994] QB 349	England	Discusses the prerogative of mercy and its evolution in England.
Council of Civil Service Unions v Minister for Civil Service	House of Lords	Yes	[1985] 1 AC 374	England	Discusses the amenability of prerogative powers to judicial review.
Burt v Governor-General	Court of Appeal	Yes	[1992] 3 NZLR 672	New Zealand	Discusses the justiciability of the prerogative of mercy in New Zealand.
Horwitz v Connor	High Court	Yes	(1908) 6 CLR 38	Australia	Affirms the common law position that no court has jurisdiction to review the discretion of the Governor in Council in his exercise of the prerogative of mercy.
Von Einem v Griffin	Supreme Court of South Australia	Yes	(1998) 72 SASR 110	Australia	Revisits the issue of justiciability of the prerogative of mercy.
Eastman v Australian Capital Territory	Australian Capital Territory Court of Appeal	Yes	[2008] ACTCA 7	Australia	Discusses the review of procedural fairness in the context of the prerogative of mercy.
Sim Kie Chon v Superintendent of Pudu Prison	Malaysian Supreme Court	Yes	[1985] 2 MLJ 385	Malaysia	Affirms that the power of pardon is not amenable to judicial review.
Public Prosecutor v Lim Hiang Seoh	Malaysian Federal Court	Yes	[1979] 2 MLJ 170	Malaysia	States that decisions on clemency are solely for the executive.
Superintendent of Pudu Prison v Sim Kie Chon	Malaysian Supreme Court	Yes	[1986] 1 MLJ 494	Malaysia	Reiterates that judicial review is excluded by implication when the Constitution empowers the nation’s highest executive as the repository of the clemency power.
Karpal Singh v Sultan of Selangor	Unknown	Yes	[1988] 1 MLJ 64	Malaysia	Deals with a challenge to a public statement by the Sultan regarding pardons.
Juraimi bin Husin v Pardons board, State of Pahang	Malaysian Federal Court	Yes	[2002] 4 MLJ 529	Malaysia	Reaffirms the non-reviewability of the clemency process.
de Freitas v Benny	Privy Council	Yes	[1976] AC 239	Trinidad and Tobago	States that mercy is not the subject of legal rights and a convicted person has no legal right to have his case considered.
Thomas Reckley v Minister of Public Safety and Immigration (No 2)	Privy Council	Yes	[1996] 1 AC 527	Bahamas	Holds that the Minister’s discretion in relation to his advice on the clemency process remains personal and non-reviewable.
Neville Lewis v Attorney-General of Jamaica	Privy Council	Yes	[2001] 2 AC 50	Jamaica	States that a body which is required to consider a petition for mercy should be required to receive the representations of a man condemned to die.
Maru Ram v Union of India	Supreme Court	Yes	1981 (1) SCC 107	India	Holds that the merits of the decision to pardon are not subject to judicial review, but the decision making process is.
G Krishta Goud v State of Andhra Pradesh	Supreme Court of India	Yes	[1976] 2 SCR 73	India	States that in an extreme situation, the courts would have to contemplate the suitability of judicial review as a remedy.
Epuru Sudhakar v Government of Andhra Pradesh	Supreme Court	Yes	(2006) 8 SCC 161	India	Notes that challenges are made to the grant of pardon or remission.
Chng Suan Tze v Minister of Home Affairs	Court of Appeal	Yes	[1988] 2 SLR(R) 525	Singapore	Cited for the principle that all power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.
Law Society of Singapore v Tan Guat Neo Phyllis	Court of Appeal	Yes	[2008] 2 SLR(R) 239	Singapore	Cited for the principle that the constitutional power to prosecute is not unfettered, but is judicially reviewable in exceptional cases.
Re Shankar Alan s/o Anant Kulkarni	Unknown	Yes	[2007] 1 SLR(R) 85	Singapore	Cited for the test for apparent bias.
Minister for Immigration and Multicultural Affairs v Jia Legeng	Unknown	Yes	[2001] 205 CLR 507	Australia	Cited for the point that a judge cannot be so committed to a conclusion already formed as to be incapable of alteration.
Hot Holdings Pty Ltd v Creasy	High Court of Australia	Yes	[2002] HCA 51	Australia	Cited for the importance of being sensitive to the context of the relevant decision maker in question.
Yong Vui Kong v PP	Court of Appeal	Yes	[2010] SGCA 20	Singapore	The Court of Appeal noted that it was unnecessary “to consider Mr Ravi’s submission as to the effect which the President’s power to grant clemency under [Article 22P] has on the constitutionality of the [mandatory death penalty]
R v Bentley (deceased)	Court of Appeal	Yes	[2001] 1 Cr App R 307	England	Conviction was quashed by the Court of Appeal in 1998

13. Applicable Rules

Rule Name
O 53 of the Rules of Court
O 53 r 1(3)

14. Applicable Statutes

Statute Name	Jurisdiction
Misuse of Drugs Act	Singapore
s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed)	Singapore
Rules of Court (Cap 322, R 5, 2006 Rev Ed)	Singapore
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)	Singapore
Article 22P of the Constitution of the Republic of Singapore	Singapore
s 220(f)(ii) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed)	Singapore
Article 42 of the Malaysian Federal Constitution	Malaysia
s 8 of the Republic of Singapore Independence Act (1985 Rev Ed)	Singapore
s 8(1) of the Internal Security Act (Cap 143, 1985 Rev Ed)	Singapore
Article 21(1) of the Constitution	Singapore
Article 21(2) of the Constitution	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Clemency
Judicial Review
Prerogative of Mercy
Justiciability
Apparent Bias
Pre-determination
Mandatory Death Penalty

15.2 Keywords

Clemency
Judicial Review
Singapore
Constitution
Article 22P
Pardon
Death Penalty
Drug Trafficking

17. Areas of Law

Area Name	Relevance Score
Clemency Process	95
Misuse of Drugs Act	90
Constitutional Law	80
Criminal Law	70
Administrative Law	60
Criminal Procedure	60

16. Subjects

Constitutional Law
Criminal Law
Administrative Law