Yong Vui Kong v Public Prosecutor: Constitutionality of Caning under Misuse of Drugs Act

Yong Vui Kong appealed to the Court of Appeal of Singapore on March 4, 2015, against his sentence of life imprisonment and 15 strokes of the cane for drug trafficking, arguing that caning violates Articles 9(1) and 12(1) of the Constitution. The Court of Appeal, led by Sundaresh Menon CJ, dismissed the appeal, holding that caning does not constitute torture, is not irrational, and does not violate equal protection under the Constitution.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal Dismissed

1.3 Case Type

Criminal

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal on caning sentence for drug trafficking. Court upheld caning's constitutionality, finding no violation of fundamental rights.

1.7 Decision Date

3 March 2015

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Public Prosecutor	Respondent	Government Agency	Appeal Dismissed	Won	Tai Wei Shyong of Attorney-General’s Chambers Francis Ng of Attorney-General’s Chambers Sarala Subramaniam of Attorney-General’s Chambers Scott Tan of Attorney-General’s Chambers
Yong Vui Kong	Appellant	Individual	Appeal Dismissed	Lost	M Ravi of L F Violet Netto

3. Judges

Judge Name	Title	Delivered Judgment
Sundaresh Menon	Chief Justice	Yes
Andrew Phang Boon Leong	Justice of the Court of Appeal	No
Tay Yong Kwang	Judge	No

4. Counsels

Counsel Name	Organization
Tai Wei Shyong	Attorney-General’s Chambers
Francis Ng	Attorney-General’s Chambers
Sarala Subramaniam	Attorney-General’s Chambers
Scott Tan	Attorney-General’s Chambers
M Ravi	L F Violet Netto

4. Facts

The Appellant was charged with trafficking 47.27g of diamorphine under s 5(1)(a) of the Misuse of Drugs Act.
The offence was committed on June 12, 2007.
The Appellant was convicted and sentenced to death on November 14, 2008.
The Appellant challenged the constitutionality of the mandatory death penalty.
The Misuse of Drugs (Amendment) Act 2012 allowed for life imprisonment and caning in certain cases.
The Public Prosecutor issued a certificate of substantive assistance for the Appellant.
The Judge imposed life imprisonment and 15 strokes of the cane.

5. Formal Citations

Yong Vui Kong v Public Prosecutor, Criminal Appeal No 11 of 2013, [2015] SGCA 11

6. Timeline

Date	Event
2007-06-12	Offence committed
2008-11-14	Appellant sentenced to death by the Judge
2011-07-01	Executions suspended pending review of mandatory death penalty
2012-11-14	Misuse of Drugs (Amendment) Act 2012 passed
2013-01-01	Misuse of Drugs (Amendment) Act 2012 came into effect
2013-09-26	Appellant applied for re-sentencing under s 33B of the amended MDA
2013-11-12	Public Prosecutor issued a certificate of substantive assistance in respect of the Appellant
2013-11-14	Judge imposed mandatory minimum sentence of life imprisonment and 15 strokes of the cane
2015-03-04	Judgment reserved

7. Legal Issues

Constitutionality of Caning
- Outcome: The court held that caning does not violate Articles 9(1) and 12(1) of the Constitution.
- Category: Constitutional
- Sub-Issues:
  - Violation of Article 9(1) of the Constitution
  - Violation of Article 12(1) of the Constitution
  - Whether caning constitutes torture
  - Whether caning is an irrational punishment
  - Whether caning violates equal protection
Interpretation of 'Law' under Article 9(1)
- Outcome: The court clarified the scope of 'law' under Article 9(1), particularly in relation to fundamental liberties.
- Category: Constitutional
- Sub-Issues:
  - Whether 'law' includes fundamental rules of natural justice
  - Whether 'law' incorporates international law prohibitions
Application of International Law in Domestic Law
- Outcome: The court reaffirmed Singapore's dualist approach, holding that international law does not automatically override domestic law.
- Category: Jurisdictional
- Sub-Issues:
  - Whether peremptory norms of international law are automatically incorporated into domestic law
  - Whether treaties have domestic effect without legislative implementation

8. Remedies Sought

Appeal against sentence of caning
Declaration that caning is unconstitutional

9. Cause of Actions

Violation of Constitutional Rights
Drug Trafficking

10. Practice Areas

Criminal Appeals
Constitutional Litigation
International Law
Human Rights

11. Industries

Law Enforcement
Judiciary

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Yong Vui Kong v Public Prosecutor	High Court	Yes	[2010] 3 SLR 489	Singapore	Cited regarding the constitutionality of the mandatory death penalty imposed by s 33 of the Misuse of Drugs Act.
Yong Vui Kong v Attorney-General	High Court	Yes	[2011] 2 SLR 1189	Singapore	Cited regarding the integrity of the clemency process set out in Art 22P of the Constitution.
Yong Vui Kong v Public Prosecutor	High Court	Yes	[2012] 2 SLR 872	Singapore	Cited regarding the Public Prosecutor’s decision to prosecute him for a capital offence under s 5(1)(a) of the MDA.
Public Prosecutor v Tan Cheng Yew and another appeal	High Court	Yes	[2013] 1 SLR 1095	Singapore	Cited to support the dualist position in Singapore's legal system regarding international law.
Lim Meng Suang and another v Attorney General and another appeal	Court of Appeal	Yes	[2015] 1 SLR 26	Singapore	Cited regarding the ambit of Art 9 of the Constitution.
Nguyen Tuong Van v Public Prosecutor	Court of Appeal	Yes	[2005] 1 SLR(R) 103	Singapore	Cited regarding the requirement for customary international law to be clearly and firmly established before its adoption by the courts.
Chung Chi Cheung v The King	Privy Council	Yes	[1939] AC 160	United Kingdom	Cited for the principle that international law has no validity save in so far as its principles are accepted and adopted by domestic law.
R v Hape	Supreme Court of Canada	Yes	[2007] 2 SCR 292	Canada	Cited regarding the doctrine of adoption of customary international law in the domestic sphere.
Prosecutor v Anto Furundžija	International Criminal Tribunal for the former Yugoslavia	Yes	IT-95-17/1-T	International	Cited as an example of an international court holding that the prohibition of torture is a peremptory norm.
Siderman de Blake v Argentina	United States Court of Appeals for the Ninth Circuit	Yes	965 F 2d 699	United States	Cited as an example of an international court holding that the prohibition of torture is a peremptory norm.
Regina v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 3)	House of Lords	Yes	[2000] 1 AC 147	United Kingdom	Cited as an example of an international court holding that the prohibition of torture is a peremptory norm.
Al-Adsani v The United Kingdom	European Court of Human Rights	Yes	[2001] ECHR 761	Europe	Cited as an example of an international court holding that the prohibition of torture is a peremptory norm.
Trendtex Trading Corporation v Central Bank of Nigeria	Court of Appeal	Yes	[1977] QB 529	United Kingdom	Cited to illustrate the difference between the transformation and incorporation doctrines regarding the application of customary international law.
Nulyarimma v Thompson	Federal Court of Australia	Yes	[1999] FCA 1192	Australia	Cited to show that Australia follows the transformation approach to international law.
J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry	House of Lords	Yes	[1990] 2 AC 418	United Kingdom	Cited to support the principle that treaties do not have domestic effect until implemented by legislation.
A (FC) and others (FC) v Secretary of State for the Home Department	House of Lords	Yes	[2006] 2 AC 221	United Kingdom	Cited to support the principle that treaties do not have domestic effect until implemented by legislation.
Public Prosecutor v Nguyen Tuong Van	High Court	Yes	[2004] 2 SLR(R) 328	Singapore	Cited and distinguished regarding the domestic incorporation of treaty law.
Salomon v Commissioners of Customs & Excise	Court of Appeal	Yes	[1967] 2 QB 116	United Kingdom	Cited regarding the interpretation of domestic laws to be consistent with international obligations.
Regina v Secretary of State for the Home Department, Ex parte Brind and others	House of Lords	Yes	[1991] 1 AC 696	United Kingdom	Cited regarding the interpretation of domestic laws to be consistent with international obligations.
A and others v Secretary of State for the Home Department (No 2)	House of Lords	Yes	[2006] 2 AC 221	United Kingdom	Cited for the common law prohibition on torture.
Ong Ah Chuan v PP	Privy Council	Yes	[1979–1980] SLR(R) 710	Singapore	Cited regarding the fundamental rules of natural justice in the common law.
Haw Tua Tau and others v Public Prosecutor	Privy Council	Yes	[1981–1982] SLR(R) 133	Singapore	Cited regarding the fundamental rules of natural justice in the common law.
Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matter	High Court	Yes	[2012] 4 SLR 947	Singapore	Cited regarding the principle of separation of powers as part of the basic structure of the Constitution.
Kesavananda Bharati v State of Kerala	Supreme Court of India	Yes	AIR 1973 SC 1461	India	Cited regarding the basic structure doctrine.
Vellama d/o Marie Muthu v Attorney-General	Court of Appeal	Yes	[2013] 4 SLR 1	Singapore	Cited regarding the philosophical underpinnings of the right to vote in the Westminster model of government.
Teo Soh Lung v Minister for Home Affairs and others	High Court	Yes	[1989] 1 SLR(R) 461	Singapore	Cited regarding the basic structure doctrine.
Teo Soh Lung v Minister for Home Affairs and others	Court of Appeal	Yes	[1990] 1 SLR(R) 347	Singapore	Cited regarding the basic structure doctrine.
Public Prosecutor v Li Weiming and others	Court of Appeal	Yes	[2014] 2 SLR 393	Singapore	Cited regarding the interpretation of enabling words in a statute.
Ramalingam Ravinthran v Attorney-General	Court of Appeal	Yes	[2012] 2 SLR 49	Singapore	Cited regarding the presumption of legality that attaches to the acts of public officials.
Entick v Carrington	Court of King's Bench	Yes	(1765) 19 Howell’s State Trials 1029	England	Cited regarding the requirement for every invasion of private property to be authorized by some positive law.
Tan Eng Hong v Attorney-General	Court of Appeal	Yes	[2012] 4 SLR 476	Singapore	Cited regarding the reasonable classification test for determining whether a law violates the equal protection clause.
Ratnam Alfred Christie v Public Prosecutor	High Court	Yes	[1999] 3 SLR(R) 685	Singapore	Cited regarding the purpose of the exemption from caning for males above the age of 50.
Korobov v Ukraine	European Court of Human Rights	Yes	Application No 39598/03	Europe	Cited as an example of conduct that constitutes torture.
Aksoy v Turkey	European Court of Human Rights	Yes	Application No 21987/93	Europe	Cited as an example of conduct that constitutes torture.
El-Masri v The Former Yugoslav Republic of Macedonia	European Court of Human Rights	Yes	Application No 39630/09	Europe	Cited as an example of conduct that constitutes torture.
Prosecutor v Miroslav Kvocka et al	International Criminal Tribunal for the former Yugoslavia	Yes	Case No IT-98-30/1	International	Cited as an example of conduct that constitutes torture.
Husayn (Abu Zubaydah) v Poland	European Court of Human Rights	Yes	Application No 7511/13	Europe	Cited as an example of conduct that constitutes torture.
Tyrer v The United Kingdom	European Court of Human Rights	Yes	[1978] ECHR 2	Europe	Cited to show that juvenile birching did not constitute torture but amounted to degrading punishment.
Caesar v Trinidad and Tobago	Inter-American Court of Human Rights	Yes	Series C, No 123	Inter-America	Cited as the only case where corporal punishment was expressly held to constitute torture.
Curtis Francis Doebbler v Sudan	African Commission on Human and Peoples’ Rights	Yes	(2003) AHRLR 153	Africa	Cited regarding the practice of lashing as a form of corporal punishment.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Constitution of the Republic of Singapore	Singapore
Misuse of Drugs Act (Cap 185, 2001 Rev Ed)	Singapore
Misuse of Drugs (Amendment) Act 2012	Singapore
Criminal Procedure Code (Cap 68, 2012 Rev Ed)	Singapore
Geneva Conventions Act (Cap 117, 1985 Rev Ed)	Singapore
Interpretation Act (Cap 1, 2002 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Caning
Torture
Constitutionality
Equal Protection
Substantive Assistance
Mandatory Death Penalty
Dualism
International Law
Jus Cogens
Inhuman Punishment

15.2 Keywords

Caning
Constitutionality
Drug Trafficking
Singapore
Criminal Law
Human Rights
International Law

17. Areas of Law

Area Name	Relevance Score
Misuse of Drugs Act	90
Constitutional Law	80
Criminal Law	75
Sentencing	60
International Law	40

16. Subjects

Constitutional Law
Criminal Law
Human Rights
International Law