The Court of Appeal has thrown out a second application by British drug trafficker Yuen Ye Ming, who sought permission to bring a criminal reference in a bid to reduce his sentence, on Wednesday afternoon (12th August).
Yuen’s present application to bring a criminal reference, just as his first application, was brought out of time beyond the one-month limit from the date his appeal in the High Court was dismissed (5th November 2018).
Chief Justice Sundaresh Menon, who heard the application with Judges of Appeal Judith Prakash and Tay Yong Kwang, held that the three questions of law which Yuen has raised were not of public interest; neither did they arose during Yuen’s appeal before the High Court. The three questions are as follows:
(a) Whether the offences of possession of a controlled drug and the simultaneous consumption of that same controlled drug is one incidence of criminal behaviour and should not incur double punishment;
(b) Whether a sentence of caning may be imposed as a concurrent sentence to another sentence of caning;
(c) Whether, to the extent Criminal Procedure Code and in particular, section 306(1) of the CPC, prevents a judge from considering the proportionality of the total number of strokes imposed on an offender sentenced to multiple offences, that restriction is – (i) a breach of the Applicant’s common law right to a proportionate sentence; (ii) unlawful because it denies him (and other offenders similarly situated) equal protection of the law guaranteed by Article 12 of the Constitution.
The court has indicated their intention to issue a written judgment explaining their decision in Yuen’s present application at a later date.
Yuen was sentenced to a global sentence of 20 years’ imprisonment and 24 strokes of the cane in July 2018 over two set of drug charges, one set of which concerned offences committed while on bail after his conviction on the other earlier set and therefore attracted heavier sentences. His appeal, as just mentioned, was dismissed by Justice See Kee Oon four months later.
In February last year, Yuen, who was represented by Mr Eugene Thuraisingam at that time, sought an extension of time to bring a criminal reference on a question of law, that the enhanced punishment regime in the Misuse of Drugs Act was not intended for re-offenders such as himself, who have not yet served their first punishment or offended in the face of rehabilitation opportunities already made available to them. This was dismissed by the Court of Appeal in August last year.
Yuen then petitioned to the President for clemency to set aside his caning sentence, which was also rejected in January this year. Mr M Ravi then took over conduct of Yuen’s case and filed a fresh application to “appeal” on different questions of law.
During the hearing on Wednesday afternoon, Mr Ravi submitted that the requirement of the question of law “having arisen during the appeal in the High Court” should be given a broader meaning, i.e. it need not have been “expressly identified and determined”.
In this connection, Mr Ravi also asked the court to take into account the factor that Yuen was not legally represented during the appeal in the High Court, such that “it was fanciful” for the burden to lie on Yuen to “have identified legal and constitutional points at his appeal and expressly [gotten] the High Court judge to rule on them”.
Turning to the question (a), Mr Ravi pointed out that one of the charges, which involved the consumption of methamphetamine was ordered to run consecutive to a charge of possession of the same methamphetamine meant for Yuen’s personal use. This, as Mr Ravi argued, amounted to “double punishment” as consumption and possession of a controlled drug for personal use should be treated as a single criminal act.
As for question (b), Mr Ravi argued that the Court of Appeal should revisit a 30-year-old High Court ruling which held that the court has no power to order concurrent caning sentences in the absence of any power-conferring provision in the Criminal Procedure Code to such effect, pointing out that “the penal landscape and the statutory powers of the court has significantly changed since 1991”. He relied on a few Malaysian court decisions which suggested the possibility of ordering concurrent or “non-cumulative” caning sentences.
Question (c) was framed as an alternative to question (b), in that Mr Ravi seeks to argue that a mandatory minimum sentence of caning would be unconstitutional for breaching the principle of proportionality, in the event the court has no power to order caning sentences to run concurrently.