Court of Appeal of the Republic of Singapore

Country Profile:

Singapore retains the mandatory death penalty for ordinary crimes, including murder, kidnapping, treason and drug-related offences.  Singapore voted against both the 2007 and 2008 UN General Assembly Resolutions on the adoption of a moratorium on the use of the death penalty.  In 2008, Singapore imposed five death sentences and carried out at least one reported execution.  In 2009, at least 6 death sentences were imposed and 1 execution was carried out. Singapore is neither a party to the International Convention on Civil and Political Rights (ICCPR) nor its Second Optional Protocol aiming at the abolition of the death penalty (1989).

Yong Vui Kong v Public Prosecutor [2010] SGCA 20

Background to the case of Yong Vui Kong

We are assisting local lawyers in Singapore in the case of Yong Vui Kong, in bringing an appeal against the mandatory death sentence for drug trafficking.  Vui Kong, a twenty-three year old Malaysian, was due to be executed in Singapore in December 2009, following the denial of clemency by the President of Singapore.  He admitted at trial that he was a drug courier and was convicted of trafficking 47.27 grams of heroin.  He was 19 years old at the time he was charged and had no previous criminal record. We assisted in preparing his appeal to the Court of Appeal of Singapore requesting leave to appeal to consider the constitutionality of the mandatory death sentence. In an unprecedented decision, the Court of Appeal granted Vui Kong leave to appeal out of time on the basis of special circumstances.  (See Press Release).   

Constitutional Challenge to the Mandatory Death Penalty for Drug Trafficking

With the assistance of Edward Fitzgerald QC and John Jones, barristers from Doughty Street Chambers, we assisted the local lawyer, M. Ravi, in preparing detailed skeleton submissions for the hearing before the Court of Appeal to consider the constitutionality of the mandatory death penalty for drug trafficking. In March 2010, the legal team from the UK travelled to Singapore to attend and assist M Ravi at the hearing of the appeal.  

On 14 May 2010, the Court of Appeal delivered their judgment dismissing the appeal. The Court held firstly, that there is no specific prohibition of inhuman punishment contained within the Singapore Constitution, and therefore the mandatory death penalty, even if it did constitute inhuman punishment, is not unconstitutional. The Court also rejected the argument that customary international law prohibits the mandatory death penalty as a form of inhuman punishment. For these reasons, the Court held that the mandatory death penalty does not violate the right to life provision in the Singapore Constitution. The Court also rejected the argument that the Misuse of Drugs Act draws arbitrary distinctions between those who traffic different amounts of drugs and therefore does not violate the right to equal protection under the law. The Court concluded that any developments in customary international law or comparative constitutional law would have no effect upon the right to life provision in the Singapore Constitution, affirming that the appropriateness of the mandatory death penalty is a matter for Parliament, not the Courts. The decision of the Court of Appeal is clearly out of step with current norms on the death penalty as it fails to take account of contemporary human rights standards established by international human rights tribunals and nearly every constitutional court around the world, namely that the imposition of the mandatory death penalty violates the right to life as it is arbitrary and amounts to inhuman and degrading treatment. To read the Court of Appeal judgment, click here.

 Challenge to Clemency Process

We have also assisted in preparing Vui Kong’s clemency petition. Shortly before judgment was delivered on 14 May 2010, Singapore’s Law Minister made several prejudicial remarks in favour of Vui Kong’s execution. In Singapore, even though clemency is exercised by the President, the cabinet advises the President in the exercise of this function. We assisted M Ravi in preparing an application for judicial review of the clemency process, on the basis that procedures are unfair and because of the Cabinet Minister’s apparent bias. Contemporary human rights principles indicate that procedural fairness and the rules of natural justice must apply to the clemency process. The procedures should enable the condemned individual to receive adequate notice of the clemency hearing and full disclosure of all material so that informed representations can be made. This is especially important in Singapore where the death penalty is mandatory and the Mercy Committee effectively determines who should live and who should die. 

In spite of current legal trends, the judicial review application was dismissed by the High Court on 13 August 2010. Justice Chong ruled that the power to grant clemency “rests solely with the Cabinet” and that the President has no discretion in this. He also held that the courts have no power to review the clemency process, as he found that the principles of natural justice do not apply to this executive function. 

An appeal was filed in the Court of Appeal and with the assistance of Edward Fitzgerald QC and Ben Silverstone, barristers from Doughty Street Chambers, we prepared written submissions for the appeal against this decision. The appeal hearing took place on 17 January 2011.

Court of Appeal decision

Regrettably, on 4 April 2011, the Court of Appeal delivered their judgment dismissing the appeal, and upheld the reasoning given in the High Court. Firstly, the Court held that the President has no discretion as to how the clemency power should be exercised in a particular case. The President can only exercise the clemency power in accordance with the advice of the Cabinet, and cannot act in his own personal discretion contrary to such advice. 

Secondly, the Court rejected the argument that the rules of natural justice, and in particular, (1) the rule against bias; and (2) the rule providing for a right of hearing, applies to the clemency process in Singapore. The Court found that whilst the rule against bias applies in Singapore, statements made by the Law Minister merely reflected the legislative policy that the mandatory death penalty for serious drug trafficking offences can be imposed on any offender aged 18 or above at the time of the offence, and therefore did not constitute bias. 

Third, the Court rejected the argument that Vui Kong has a right to full disclosure of the material presented to the Cabinet in considering his clemency petition. In doing so, the Court of Appeal rejected the seminal Privy Council decision in Lewis v AG of Jamaica, where the Privy Council had held that rules of fairness apply to the clemency process, including the right to full disclosure. 

Fourth, the Court was of the view that the clemency power is justiciable only if it has been exercised in a manner which is unconstitutional or which amounts to an abuse of power. However, the merits of the clemency decision are not reviewable. To read the full judgment, click here. 

Vui Kong is now at imminent risk of execution unless the Singaporean President S.R.Nathan grants clemency, a request that he has previously rejected. We assisted in the preparation of the clemency petition which was submitted to the President on 7 July 2011. If you would like to write an appeal letter to the President, please refer to Amnesty International's Urgent Action.

An excellent 25 minute documentary on the case and the work of his local lawyers to save Vui Kong was aired on Al Jazeera news. The legal assistance given by The Death Penalty Project is also featured and can be viewed here.

Since the stay of execution was granted in December 2009, there was an unofficial stay of execution for all prisoners on death row. According to the Singapore Prison Service Annual Report 2010, no executions were carried out in 2010.  

To read an interview with the Executive Directors specifically in relation to the death penalty for drug offences, click here. 

Alan Shadrake

In November 2010, British journalist Alan Shandrake was convicted by the High Court of Singapore of contempt of court and sentenced to 8 weeks in jail as a result of allegations made in his book, ‘Once a Jolly Hangman: Singapore Justice In the Dock’, about the application of the death penalty in Singapore. The book includes interviews with a former executioner at Singapore’s Changi Prison, who he reports has executed about 1,000 prisoners between 1959 and 2006. 

In April 2011, the Court of Appeal in Singapore dismissed Mr. Shadrake's appeal. We, together with Edward Fitzgerald QC and Ben Silverstone from Doughty Street Chambers assisted Mr. Shadrake's legal team in throughout his proceedings at trial and appeal.

For further information on the trial, please see our Press Release and Media Articles. See also our Press Release on the appeal decision and related Media Articles.