Yong Vui Kong v Attorney-General: Judicial Review of Clemency Power
Yong Vui Kong appealed to the Court of Appeal of Singapore on April 4, 2011, against the High Court's dismissal of his judicial review application against the Attorney-General. The application concerned the extent of the President's discretion in exercising the clemency power under Article 22P of the Constitution. The Court of Appeal dismissed the appeal, holding that the President must act on the advice of the Cabinet and that the clemency process was not tainted by apparent bias.
1. Case Overview
1.1 Court
Court of Appeal1.2 Outcome
Appeal Dismissed
1.3 Case Type
Constitutional
1.4 Judgment Type
Written Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Judicial review application concerning the President's clemency power. The Court of Appeal dismissed the appeal, holding that the President must act on the Cabinet's advice.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Yong Vui Kong | Appellant | Individual | Appeal Dismissed | Lost | M Ravi |
| Attorney-General | Respondent | Government Agency | Appeal Dismissed | Won | Aedit Abdullah, Low Siew Ling, Shawn Ho Hsi Ming |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Chan Sek Keong | Chief Justice | Yes |
| Andrew Phang Boon Leong | Justice of the Court of Appeal | No |
| V K Rajah | Justice of the Court of Appeal | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| M Ravi | L F Violet Netto |
| Aedit Abdullah | Attorney-General's Chambers |
| Low Siew Ling | Attorney-General's Chambers |
| Shawn Ho Hsi Ming | Attorney-General's Chambers |
4. Facts
- Appellant was convicted of trafficking 47.27g of diamorphine.
- Appellant was sentenced to death under the Misuse of Drugs Act.
- Appellant initially withdrew his appeal against conviction and sentence.
- Appellant later sought leave to pursue his appeal, arguing mistaken belief.
- Law Minister made statements regarding the mandatory death penalty.
- Appellant argued the Law Minister's statements tainted the clemency process.
- Appellant sought judicial review of the clemency process.
5. Formal Citations
- Yong Vui Kong v Attorney-General, Civil Appeal No 144 of 2010, [2011] SGCA 9
- Yong Vui Kong v Attorney-General, , [2011] 1 SLR 1
- Public Prosecutor v Yong Vui Kong, , [2009] SGHC 4
- Yong Vui Kong v Public Prosecutor and another matter, , [2010] 3 SLR 489
- Yong Vui Kong v Public Prosecutor, , [2010] 2 SLR 192
6. Timeline
| Date | Event |
|---|---|
| Appellant convicted of drug trafficking and sentenced to death. | |
| Appellant appealed against conviction and sentence. | |
| Appellant indicated wish to withdraw appeal. | |
| Court of Appeal accepted withdrawal of appeal. | |
| Appellant submitted petition to the President for clemency. | |
| President declined to grant clemency. | |
| Appellant filed Criminal Motion seeking leave to pursue appeal. | |
| Court of Appeal granted leave to proceed with appeal. | |
| Appeal heard. | |
| Law Minister's statements reported in TODAY. | |
| Court of Appeal dismissed appeal. | |
| Report in TODAY elaborating on Law Minister's statements. | |
| Appellant commenced Originating Summons. | |
| Judgment reserved. | |
| Court of Appeal dismissed the appeal. |
7. Legal Issues
- Justiciability of Clemency Power
- Outcome: The court held that the clemency power is subject to judicial review, but only to ensure compliance with legal limits and good faith.
- Category: Jurisdictional
- Related Cases:
- [2011] 1 SLR 1
- [1988] 2 SLR(R) 525
- Presidential Discretion in Clemency
- Outcome: The court held that the President must act on the advice of the Cabinet and has no personal discretion in exercising the clemency power.
- Category: Substantive
- Apparent Bias in Clemency Process
- Outcome: The court held that the clemency process was not tainted by apparent bias due to the Law Minister's statements.
- Category: Procedural
- Disclosure of Information in Clemency
- Outcome: The court held that the appellant has no right to disclosure of the materials considered by the Cabinet in advising the President.
- Category: Procedural
8. Remedies Sought
- Declaratory Judgment
- Prohibition Order
- Stay of Execution
- Pardon
9. Cause of Actions
- Judicial Review
10. Practice Areas
- Constitutional Litigation
- Criminal Appeals
- Judicial Review
11. Industries
- Law
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Yong Vui Kong v Attorney-General | High Court | Yes | [2011] 1 SLR 1 | Singapore | Decision of the High Court being appealed. |
| Public Prosecutor v Yong Vui Kong | High Court | Yes | [2009] SGHC 4 | Singapore | Cited for the initial conviction and sentencing of the appellant. |
| Yong Vui Kong v Public Prosecutor | Court of Appeal | Yes | [2010] 2 SLR 192 | Singapore | Cited for the Court of Appeal granting leave to proceed with the appeal. |
| Yong Vui Kong v Public Prosecutor and another matter | Court of Appeal | Yes | [2010] 3 SLR 489 | Singapore | Cited for the Court of Appeal dismissing the appeal. |
| Chng Suan Tze v Minister for Home Affairs and others and other appeals | Court of Appeal | Yes | [1988] 2 SLR(R) 525 | Singapore | Cited for the principle that all power has legal limits. |
| Lee Hsien Loong v Review Publishing Co Ltd and another and another suit | Court of Appeal | Yes | [2007] 2 SLR(R) 453 | Singapore | Cited for the principle that there are provinces of executive decision-making that are immune from judicial review. |
| Michael de Freitas also called Michael Abdul Malik v George Ramoutar Benny and Others | Privy Council | Yes | [1976] AC 239 | Trinidad and Tobago | Cited for the principle that mercy begins where legal rights end. |
| Chandler and Others v Director of Public Prosecutions | House of Lords | Yes | [1964] AC 763 | England | Cited for the principle that some matters are not for judge or jury. |
| Operation Dismantle Inc and others v Her Majesty The Queen | Supreme Court of Canada | Yes | [1985] 1 SCR 441 | Canada | Cited for the principle that courts can adjudicate on government decisions. |
| Hanratty and Another v Lord Butler of Saffron Walden | English Court of Appeal | Yes | (1971) 115 SJ 386 | England | Cited for the principle that the law would not inquire into the manner in which the prerogative of mercy was exercised. |
| Council of Civil Service Unions and Others v Minister for the Civil Service | House of Lords | Yes | [1985] AC 374 | England | Cited for the principle that the exercise of prerogative power is subject to review if the subject matter is justiciable. |
| Regina v Secretary of State for the Home Department, Ex parte Bentley | Divisional Court | Yes | [1994] QB 349 | England | Cited for the principle that some aspects of the exercise of the royal prerogative are amenable to the judicial process. |
| Neville Lewis v Attorney General of Jamaica and another | Privy Council | Yes | [2001] 2 AC 50 | Jamaica | Cited for the principle that the prerogative of mercy should be exercised pursuant to procedures which are fair and proper and subject to judicial review. |
| Thomas Reckley v Minister of Public Safety and Immigration and Others (No 2) | Privy Council | Yes | [1996] AC 527 | Bahamas | Cited for the principle that mercy is not the subject of legal rights. |
| Attorney-General and Others v Joseph (Jeffrey) and Boyce (Lennox) | Caribbean Court of Justice | Yes | (2006) 69 WIR 104 | Caribbean | Cited for the principle that the clemency power is subject to judicial review, although the merits of the clemency decision remain non-justiciable. |
| Wilbert Colin Thatcher v The Attorney General of Canada, The Honourable Allan Rock, Minister of Justice, and the Attorney General of Saskatchewan | Federal Court | Yes | [1997] 1 FC 289 | Canada | Cited for the principle that the merits of a clemency decision and the manner in which the decision was made could be scrutinised for compatibility with the Canadian Charter. |
| Horwitz v Connor, Inspector General of Penal Establishments of Victoria | High Court of Australia | Yes | 6 CLR 38 | Australia | Cited for the principle that no court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy. |
| Eastman v Australian Capital Territory | Court of Appeal of the Australian Capital Territory | Yes | 227 FLR 262 | Australia | Cited for upholding the principle that no court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy. |
| Burt v Governor-General | New Zealand Court of Appeal | Yes | [1992] 3 NZLR 672 | New Zealand | Cited for the principle that there were no conceptual obstacles to requiring the Governor-General to observe the principle of audi alteram partem in exercising the prerogative of mercy, but pragmatic considerations pointed the other way. |
| Maru Ram v Union of India and others | Supreme Court of India | Yes | (1981) 1 SCC 107 | India | Cited for the principle that all public power, including constitutional power, shall never be exercised arbitrarily or mala fide. |
| Epuru Sudhakar and another v Govt of A P and others | Supreme Court of India | Yes | (2006) 8 SCC 161 | India | Cited for the principle that the exercise or non-exercise of pardon power by the President or Governor is not immune from judicial review. |
| Public Prosecutor v Soon Seng Sia Heng | Federal Court | Yes | [1979] 2 MLJ 170 | Malaysia | Cited for the principle that decisions on whether to confirm, commute, remit or pardon are a matter solely for the executive. |
| Chow Thiam Guan v Superintendent of Pudu Prison & The Government of Malaysia and Connected Appeals | Federal Court | Yes | [1983] 2 MLJ 116 | Malaysia | Cited for the principle that any stay of execution would be an extension of the prerogative of mercy, exercisable only by His Majesty the Yang di-Pertuan Agong. |
| Sim Kie Chon v Superintendent of Pudu Prisons & Ors | Supreme Court of Malaysia | Yes | [1985] 2 MLJ 385 | Malaysia | Cited for the principle that proceedings in court aimed at questioning the propriety or otherwise of a decision made in the exercise of the prerogative of mercy are not justiciable. |
| Superintendent of Pudu Prison & Ors v Sim Kie Chon | Supreme Court of Malaysia | Yes | [1986] 1 MLJ 494 | Malaysia | Cited for the principle that when the Constitution has empowered the nation’s highest executive as the repository of the clemency power, the court cannot intervene and judicial review is excluded by implication. |
| Karpal Singh v Sultan of Selangor | High Court of Malaysia | Yes | [1988] 1 MLJ 64 | Malaysia | Cited for the principle that an issue concerning the process of clemency is clearly non-justiciable. |
| Juraimi bin Husin v Pardons Board, State of Pahang & Ors | Federal Court | Yes | [2002] 4 MLJ 529 | Malaysia | Cited for the principle that the effect of making the decision making process justiciable would, in the final analysis, make the decision itself vulnerable to be held null and void. |
| Ong Ah Chuan v Public Prosecutor | Privy Council | Yes | [1981] AC 648 | Singapore | Cited for the principle that references to law in the Constitution refer to a system of law which incorporates those fundamental rules of natural justice. |
| Haw Tua Tau v Public Prosecutor | Privy Council | Yes | [1982] AC 136 | Singapore | Cited for reiterating the principle that references to law in the Constitution refer to a system of law which incorporates those fundamental rules of natural justice. |
| Minister for Immigration and Multicultural Affairs v Jia Legeng | High Court of Australia | Yes | (2001) 205 CLR 507 | Australia | Cited for the principle that the rule against bias ought not to be applied to a Minister as though he were a judicial officer or a quasi-judicial officer should he later be required to exercise his discretion on a matter relating to that policy. |
| Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No 2) | House of Lords | Yes | [2000] 1 AC 119 | England | Cited for the principle that a judge is automatically disqualified from hearing a case if he has a personal interest in the outcome of the case. |
| Locabail (UK) Ltd v Bayfield Properties Ltd and Another | English Court of Appeal | Yes | [2000] QB 451 | England | Cited for the principle that a judge would be as wrong to yield to a tenuous or frivolous objection as he would be to ignore an objection of substance. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Misuse of Drugs Act (Cap 185, 2001 Rev Ed) s 5(1)(a) | Singapore |
| Misuse of Drugs Act (Cap 185, 2001 Rev Ed) s 33 | Singapore |
| Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 22P | Singapore |
| Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 21(2) | Singapore |
| Constitution of the Republic of Singapore Art 9(1) | Singapore |
| Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 53 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Clemency Power
- Judicial Review
- Presidential Discretion
- Apparent Bias
- Natural Justice
- Legitimate Expectation
- Mandatory Death Penalty
- Constitutional Rights
15.2 Keywords
- Clemency
- Judicial Review
- President
- Attorney-General
- Singapore
- Constitution
- Drug Trafficking
- Death Penalty
16. Subjects
- Constitutional Law
- Administrative Law
- Criminal Law
- Human Rights
17. Areas of Law
- Constitutional Law
- Criminal Law
- Administrative Law
- Judicial Review