Case Summaries

Yong Vui Kong v Attorney-General [2010] SGHC 235

13 August 2010

Media Summary

Originating Summons 740 of 2010/Q

Yong Vui Kong v Attorney-General [2010] SGHC 235

Decision of the High Court (Justice Steven Chong):

1     The applicant, Mr Yong Yui Kong (“Yong”), was convicted of trafficking in 47.27g of diamorphine under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) and sentenced to suffer the mandatory death penalty by the High Court on 14 November 2008.

2     After the High Court ruling, Yong initially appealed against both conviction and sentence but subsequently withdrew his appeal to the Court of Appeal. He then petitioned the President for clemency on 11 August 2009. His petition was rejected by the President on 20 November 2009.

3     Yong subsequently obtained leave from the Court of Appeal and brought an appeal challenging the constitutionality of the mandatory death penalty. This was dismissed by the Court of Appeal on 14 May 2010.

4     On 9 May 2010, some days before the Court of Appeal delivered its judgment, local newspapers carried reports quoting Mr K Shanmugam, the Minister of Law and the Second Minister for Home Affairs (“the Minister”) as making the following two statements (collectively “the Minister’s Statement”) in response to a question at a community dialogue session as to whether the Government’s policy on the death penalty for drug offences would change in the future as a result of Yong’s case. The first statement is: 

Yong Vui Kong is young. But if we say ‘We let you go’, what is the signal we are sending?

The second statement is:

We are sending a signal to all the drug barons out there: Just make sure you choose a victim who is young, or a mother of a young child, and use them as the people to carry the drugs into Singapore.

5     On 21 July 2010, Yong brought an application to the High Court, alleging that (a) the Minister’s Statement amounted to a pre-determination of Yong’s imminent second petition for clemency and irreversibly tainted the process with apparent bias; and (b) it was the President, and not the Cabinet, who exercises the power of clemency. On these grounds Yong sought “to enjoin the President from abdicating his authority” and “an indefinite stay of execution” of his sentence. Yong also sought to see the materials which will be before the Cabinet when they decide on the advice to be given to the President on Yong’s second petition for clemency.

6     The power of clemency is provided for in Article 22P of the Constitution of the Republic of Singapore as follows:

Grant of pardon, etc.

22P. —(1) The President, as occasion shall arise, may, on the advice of the Cabinet —
(a) grant a pardon to any accomplice in any offence who gives information which leads to the conviction of the principal offender or any one of the principal offenders, if more than one;

(b) grant to any offender convicted of any offence in any court in Singapore, a pardon, free or subject to lawful conditions, or any reprieve or respite, either indefinite or for such period as the President may think fit, of the execution of any sentence pronounced on such offender; or

(c) remit the whole or any part of such sentence or of any penalty or forfeiture imposed by law.

(2) Where any offender has been condemned to death by the sentence of any court and in the event of an appeal such sentence has been confirmed by the appellate court, the President shall cause the reports which are made to him by the Judge who tried the case and the Chief Justice or other presiding Judge of the appellate court to be forwarded to the Attorney-General with instructions that, after the Attorney-General has given his opinion thereon, the reports shall be sent, together with the Attorney-General’s opinion, to the Cabinet so that the Cabinet may advise the President on the exercise of the power conferred on him by clause (1).

7     Justice Steven Chong in the High Court held that Singapore observes the principle of legality, ie that all power has legal limits and the rule of law demands that the courts should be able to limit the exercise of discretionary power. He accepted that, if the clear provisions of Article 22P were not complied with, the courts will provide relief. For example, if the reports required by Article 22P were not submitted to the Cabinet, the court will require that they be submitted.

8     However, Justice Chong went on to caution that, once the analysis moves beyond the plain wording of Article 22P, the court will be very slow to imply judicially reviewable limits. He held that Article 22P clearly afforded the executive a very wide measure of discretion, and that the power of clemency was one which began after the legal process had ended.

9     In particular, Justice Chong held that it was the Cabinet who exercised the power of clemency. The President had to act according to the Cabinet’s advice and had no personal discretion in the matter.

10     Justice Chong also held that apparent bias was not an available ground of judicial review of the clemency process. Apparent bias was a concept which applied to the courts and quasi-judicial institutions, because of the need to ensure public confidence in the administration of justice by unelected judges. The power of clemency was exercised by the executive, whose leaders were elected and accountable at the ballot box.

11     Separately, Justice Chong held that, because Yong had confirmed that he will be relying on the same grounds as his earlier clemency petition, there is no question of pre-determination. In any event, the Minister’s Statement was simply an articulation of government policy, and not a pre-determination of Yong’s imminent clemency petition.

12     Finally, Justice Chong held that, based on the express words of Article 22P, Yong had no right to see the materials that will be before the Cabinet. Such a right would only arise if there was a duty to act judicially in deciding on clemency. But the power of clemency was an executive power and accordingly there can be no duty to act judicially.

13     Justice Chong therefore dismissed Yong’s application as unmeritorious and made no order as to costs. In closing, he invited the Prison authorities to extend the 3 month time limit for filing a petition for clemency, in view of the fact that Yong was likely to appeal his decision. He also commended Mr M Ravi, counsel for Yong, and Mr David Chong SC, appearing for the Attorney-General, for their dedication and vigour in arguing their respective cases.

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.