The Government's Position on the Presumptions under the Misuse of Drugs Act

2.22 pm

The Minister for Home Affairs (Mr K Shanmugam): Sir, Mr Zhulkarnain Abdul Rahim¹ has filed a Parliamentary Question for the Sitting on or after 14 April this year, asking whether the Government has any plans to introduce amendments to the Misuse of Drugs Act (MDA), in relation to the presumptions under the Act.

Mr Zhulkarnain’s question would not have come up for this Sitting. But given the importance of the matter he has raised, I have decided to make a Ministerial Statement.

There is a case pending before the Courts challenging the presumptions. Thus, we have to be careful on what we say in this House. I will, for my part, only set out the Government's policy positions, which has been stated publicly in the past. The law, as it stands now, is based on current policy. The Government has seen no reason to introduce any amendments with regard to those presumptions.

The MDA presumptions date back to the enactment of the MDA itself in 1973. They were debated in Parliament. This Parliament has also discussed the issue, most recently, during the Second Reading of the Misuse of Drugs (Amendment) Bill in 2023. The amendment Bill was passed unanimously.

Why are the presumptions in drug cases necessary? It is essentially to protect Singapore from drug trafficking.

The MDA presumptions deal with the practical challenges in proving certain facts that are often exclusively within the accused person's knowledge or which it would not be practical for the Prosecution to get direct evidence of. For example, the Prosecution will be able to prove that the drugs were in the accused person's possession. But it would be very easy for the accused to claim that he did not know they were drugs and by that way try and avoid conviction. And if he runs that defence, then it may not be easy for the Prosecution to rebut that claim or go get the necessary evidence to prove that the accused was indeed aware that they were drugs. For example, the evidence may be overseas and often quite elusive.

Therefore, the presumptions deal with the accused’s knowledge of the nature of the drugs.

Under the MDA, the onus is on the accused to prove that he did not know that what was found to be in his possession were drugs – and these are usually facts within his knowledge.

The Prosecution must first prove beyond a reasonable doubt that the drugs were in the accused person’s possession. That will then trigger the presumption of knowledge. Also, the Prosecution must still prove all the other elements of the offence beyond a reasonable doubt.

Let me cite a few examples I gave in 2017, when I spoke in Parliament about the evidential difficulties in drug cases and the necessity of the legal presumptions. These were the examples I gave, amongst several.

First was, I quote what I then said: “A person was arrested at Woodlands Checkpoint. He has got 145 grammes of diamorphine. He said he travelled to Kuala Lumpur to look for job opportunities. He was introduced to a man known as 'Uncle'. 'Uncle' then passed him 10 packets of substances and taped these on to his body. This chap then claimed he asked 'Uncle' what they were for, but 'Uncle' showed him three fingers in reply. And he accepted it. He was not aware of the contents and he came here.”

And I went on to say how can the Prosecution rebut this? The truth is only in the person’s mind. “This is why our first Prime Minister, who was a lawyer, knew what the problems would be and reversed the onus of proof.”

Let me give you another example, again, from the same speech: "[there was a] chap, convicted in 2008. He was asked by one 'Maren' to deliver items in Singapore. He was told that it was medicine. He was told that it was rare and expensive, that it was wrapped up so that it could not be spoilt by coming into contact with air. And so he went to Johor, met 'Maren' and brought it over. You want CNB to disprove this? You think it is possible? Or do you think it is fair that the accused should prove it?”

As I said, "[w]e are dealing with lives here. The life of a trafficker, yes. But we are also dealing with thousands of Singaporean lives. And the person must get a fair trial. Prosecution must prove what was the substance, how much was it, and possession, and any other evidence that they can find. If the person has a defence, it is only fair that he proves it."

Sir, that was what I said here in 2017. That has been the position in law since 1973.

While many other countries have faced huge difficulties in combating drugs, Singapore has been able to maintain one of the lowest rates of drug abuse in the world. That is despite the worsening global drug situation and our location at the doorstep of the Golden Triangle, one of the world’s leading areas for the production of illicit drugs. I went into detail on this just last year in my Ministerial Statement on Singapore’s national drug control policy.

The presumptions have been an essential part of the legal framework that enables us to deal effectively with the drug problem.

Sir, to conclude, as I said earlier, the Government has no plans to introduce any amendments as yet with regard to the presumptions, as the law now stands.

Mr Zhulkarnain’s question may have arisen by reason of a specific challenge before the Courts, which I referred to earlier. I can say that the Government will defend the constitutionality of the presumptions. We should be careful not to discuss the specifics of any challenge. That is for the Courts to decide.

Mr Speaker: Mr Pritam Singh.

2.29 pm

Mr Pritam Singh (Aljunied): Sir, thank you for the opportunity to seek some clarifications from the Minister.

Sir, I confirm, as the Minister shared, that there is no change to the Government's position on presumptions. And I believe the Minister of State for Home Affairs in March 2023, in his Second Reading speech, restated the Government's position on presumptions. I did not hear anything new from the Minister, so I am trying to understand the reason why the Minister has to restate the position, because it is the existing position.

I looked at some earlier Parliamentary Questions that were filed. In 2019, after the Court of Appeals judgment in Adili, there was a statement from the Government stating that it would be studying the observations made by the Court of Appeal and would set out its position in due course and as to whether any legislative amendments are necessary. This was with respect to the presumptions and specifically on the position of the Court of Appeal on wilful blindness.

So, can I just confirm that the Government actually is continuing to review that particular judgment from the Court of Appeal? Because that is the closest I think we have come to the Government saying that it is reviewing something on presumptions, but I am not sure whether that is the case that the Minister is referring to.

Mr K Shanmugam: No, that is not the case that I was referring to. I assume that Mr Zhulkarnain's question arose because there is now pending a challenge in the Court of Appeal.

Mr Speaker: Mr Zhulkarnain Abdul Rahim.

Mr Zhulkarnain Abdul Rahim (Chua Chu Kang): Grateful, Speaker. I thank the Minister for answering my Parliamentary Question. I would not go into that particular case and indeed, the question was precipitated by the recent constitutionality challenge.

I have two questions for the Minister. First, the landscape of drug abuse and habits would change. I think the MDA sets out certain fixed thresholds for presumptions. For instance, 15 grammes of diamorphine or pure heroin, which would actually feed an addict for almost a year, or almost 200 abusers within one week. First question, would the Government be looking or how is the Government continually reviewing the fixed quantity thresholds of the MDA presumptions; possibly to take into account the actual patterns of drug abuse or trafficking, the changing drug markets and the new substances that are coming up?

The second question is on section 33B(1) of the MDA, which requires: first, the offender's role to be limited to that of a courier; second, a certificate to be issued by the Public Prosecutor confirming the offenders' substantive assistance in disrupting drug trafficking activities. In this regard, is the Government studying the effectiveness of this discretionary sentencing on whether it is helping to apprehend more traffickers higher up on the supply chain, or an effective deterrence in this regard?

Mr K Shanmugam: Thank you, Sir. Sir, on the first question, the review is done annually, because what matters is not just the weight but the purities. So, the Central Narcotics Bureau (CNB) and the Ministry of Home Affairs review the weight of the purities annually, and also in discussion with Health Sciences Authority (HSA), so that HSA can flag out if there are any anomalies, in terms of purities and weight that we need to look at. So, the review is done annually, so that we make sure that it is proportionate and relevant to the patterns of consumption and the market.

On the second question, on the whole, having the Certificate of Substantive Assistance has been helpful. There have been a few successes, and our view is we are better off having it rather than not having it. That does not mean that a lot of cases get solved in that way, but there is now an incentive for the drug traffickers or the people persons who are apprehended with drugs on them, and both to show that they are both pure couriers, but also to give as much information as they can. It puts more difficulties on the part of the criminal organisation or people higher up in the chain. They have to take more steps. That itself is helpful, as long as we see it in context.

2.34 pm

Mr Speaker: Order. End of Ministerial Statement. The Clerk will now proceed to read the Orders of the Day.