Christin Nirmal v Public Prosecutor (B-05-161-04/2017 (FJI))

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1 IN THE COURT OF APPEAL OF MALAYSIA (Appellate Jurisdiction) CRIMINAL APPEAL NO: B-05-161-04/2017 (FJI) [Selangor Criminal Application No: 44-171-10/2016] BETWEEN CHRISTIN NIRMAL … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT CORAM : MOHTARUDIN BIN BAKI, JCA : SURAYA BINTI OTHMAN, JCA : YEOH WEE SIAM, JCA JUDGMENT OF THE COURT BACKGROUND FACTS The Appellant’s Application [1] The Appellant, a Fijian national, was charged in the Shah Alam High Court (“High Court”) under s.39B(1)(a) of the Dangerous Drugs Act 1952 (“DDA”) for drug trafficking which, upon conviction, is punishable with the mandatory death sentence pursuant to s.39B(2) of the same Act. [2] On 21.10.2016, the Appellant filed a Notice of motion under s.84 of the Courts of Judicature Act 1984 (“CJA”) seeking to challenge the validity 2 of s.39B(1)(a) and s.39B(2) of the DDA for being inconsistent with Articles 5 and 8 of the Federal Constitution (“Application”). The three constitutional questions in the Application [3] The Appellant by the Application sought the High Court to refer the following three constitutional questions to the Federal Court regarding s.39B(1)(a), read together with s.39B(2), of the DDA (“the three Questions”): ‘(1) whether the mandatory death penalty for trafficking in a dangerous drug provided for by Section 39B of the DDA is inconsistent with Article 5(1) of the Federal Constitution which provides that “[n]o person shall be deprived of his life … save in accordance with the law” and is therefore void under Article 4(1) of the Federal Constitution.’ (“1st Question”); ‘(2) whether the mandatory death penalty for trafficking in a dangerous drug provided for by Section 39B of the DDA is inconsistent with Article 8 of the Federal Constitution which provides that “[a]ll persons are equal before the law and entitled to the equal protection of the law” and is therefore void under Article 4(1) of the Federal Constitution.’(“2nd Question”); “(3) whether the mandatory death sentence for trafficking in a dangerous drug provided for by Section 39B of the DDA is inconsistent with the Federal Constitution for being arbitrary and disproportionate and for failing to take into 3 account individual mitigating circumstances.“ (“3rd Question”); DECISION OF THE HIGH COURT [4] On 31.3.2017, the High Court gave the decision to dismiss the Application and ordered that the Appellant’s case be proceeded with at the trial as fixed. APPEAL BEFORE THIS COURT [5] The Appellants, by way of his Notice of Appeal dated 31.3.2017, appealed to this Court against the whole of the decision of the High Court for dismissing the Application on the three Questions (“Appeal”). DECISION OF THIS COURT [6] On 12.2.2018, after having heard the submissions of learned counsels of both parties and perused the Appeal Record, we made the unanimous decision to dismiss the Appeal. GROUNDS OF OUR DECISION Appeal limited to the 3rd Question [7] At the outset of the hearing, learned counsel for the Appellant informed this Court that the Appellant conceded on the 1st and 2nd Questions and hence would not be appealing on those two Questions. The appeal was therefore narrowed down and limited to only the 3rd Question. The applicable test [8] S.84 of the CJA provides as follows: “Reference of constitutional question by High Court 4

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(2) An order staying proceedings under this section may be made by the Judge of his own motion or on the application of any party and shall be made at such stage of the proceedings as the Judge may see fit having regard to the decision of such questions of fact as may be necessary to be settled to assist the Federal Court in deciding the question which has arisen and to the speedy and economical final determination of the proceedings.

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(3) Where an order for stay of proceedings has been made under this section the Judge shall state the question which in his opinion has arisen as to the effect of the Constitution in the form of a special case which so far as may be possible shall state the said question in a form which shall permit of an answer being given in the affirmative or the negative.

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(4) Where a Judge shall have stated a special case under this section the same shall be transmitted to the Federal Court in accordance with the rules of court of the Federal Court.” (emphasis added) [9] It is clear from a reading of the above s.84, that the test to be applied by the High Court in order to determine the Application is the test of whether the Appellant’s case is a “special case” which warrants the High Court to refer the constitutional questions to the Federal Court for a decision. [10] From a perusal of the Grounds of Judgment (Judgment”) of the learned High Court Judge (“learned Judge”), it is also clear that, amongst other reasons given, he had applied the correct test and decided that this 5 is not a special case for the High court to refer the three Questions to the Federal Court for a decision. The Appellant’s submissions [11] Regarding the 3rd Question, learned counsel for the Appellant submitted that the mandatory death sentence which the Court is required by the DDA to impose, upon conviction, is unconstitutional and void for the following reasons which have been succinctly stated in the “Appellant’s Speaking Note”: “2. Prior to its amendment in 1983, the DDA gave the Court a discretion on the issue of sentence by permitting an alternative between life imprisonment and death.

Subsection

(2) Any record of proceedings transmitted to the High Court under this section shall be examined by a Judge of the Court and where the Judge considers that the decision of a question as to the effect of a provision of the Constitution is necessary for the determination of the proceedings he shall deal with the case in accordance with section 84 as if it were a case before him in the original jurisdiction of the High Court in which the question had arisen.” [21] As referred to in Gan Boon Aun (supra), and for completeness, we now cite rules 32 and 33 of the Rules of the Federal Court 1995 (“RFC 1995”): “32 Reference by High Court

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(1) Where in any proceedings in any High Court a question arises as to the effect of any provision of the Constitution the Judge hearing such proceedings may make an order on such terms as may be just staying such proceedings to await the decision of such question by the Federal court.

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(2) An order staying proceedings under this rule may be made by the Judge of his own motion or on the application of any party and shall be made at such stage of the proceedings as the Judge may consider most suitable having regard to the decision of such questions of fact as may be necessary to be settled to assist the Federal Court in deciding the question which has arisen and to the speedy and economical final disposal of the proceedings. 33 Special case

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(1) Where an order for stay of proceedings has been made under rule 32 the Judge shall state the question which in his opinion has arisen as to the effect of the Constitution in the form of a special case for the opinion of the Federal Court.

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(2) The question which has arisen shall be stated in a form which shall permit of an answer being given in the affirmative or the negative.

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(3) Every special case stated under the Rule shall be divided into paragraphs and shall concisely state such facts and shall include such 11 documents as may be necessary to enable the Court to decide the question raised thereby and shall be signed by the Judge.” [22] We note further the following statement of the Federal Court in Gan Boon Aun (supra) at pg 279: “[23] … Again it is to be noted that rr 32(1) and (2) read with rr 33(1) and

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(2) of the RFC 1995 are substantially similarly worded as in the provision of s 84 of the CJA. [24] It is our considered view that it is plainly obvious that the Legislature has intended to empower only the Federal Court to determine a question as to the effect of any provision of the constitution in a reference under s 30 of the CJA. The High Court does not have such power. … [26] It is further noted that rr 34, 35, 36, 37 and 38 under Part XI of the RFC 1995 entitled ‘Special Constitutional Case’ contained specific provisions on the mode of dealing with the said special cases. … [32] With respect we are not persuaded by the argument put forward by the learned DPP that the High Court is competent to decide and rule on the constitutionality of any matter transmitted to it by a subordinate court. It is clear now reading the provisions of ss 30 and 84 of the CJA together with the relevant provisions of the RFC 1995 that it is the intention of the Legislature that jurisdiction and power is vested with the Federal Court to decide on the constitutionality of any matter that had arisen in the subordinate court and transmitted to the High Court. The High Court does not have the jurisdiction and power to decide on such constitutional issue. It only has the power to decide on such issue if the issue arises for the first time before itself.” 12 [23] Based on Gan Boon Aun (supra), we fully agree with the submissions of the Appellant that the High Court has no jurisdiction to decide on the constitutionality of the 3rd Question in the Application. Similarly, in the Appeal before us, the Court of Appeal does not have the jurisdiction to decide on the constitutionality of the same 3rd Question. [24] However, the issue before this Court is whether the learned Judge was plainly wrong in his exercise of discretion under s.84 of the CJA in not allowing the Appellant’s Application and transmitting the 3rd Question to the Federal Court for a decision. [25] In determining this issue, we bear in mind that the High Court decided, amongst others, that the 3rd Question is not a special case as stated in s.84 of the CJA where he had to refer the purported constitutional question to the Federal Court. The learned Judge did not think that the question or issue was raised for the first time to require it to be referred by the High Court to the Federal Court. He was guided to a large extent by the Federal Court decision in Public Prosecutor v. Lau Kee Hoo [1983] 1 MLJ 157 which followed the decision of the Privy Council in Ong Ah Chuan v. Public Prosecutor [1981] 1 MLJ 64. [26] In Ong Ah Chuan, the Privy Council, on appeal from Singapore, dealt with the constitutionality of s.15 of the Misuse of Drugs Act 1973 (“MDA”) (No. 5 of 1973) [now s.17 of the MDA (Cap 185, 2008 Rev. Ed.)], and the mandatory death penalty under the said Act for certain offences. The appellants in that case contended that the presumption of trafficking under s.15 of the MDA violated Article 9(1) of the Constitution of the Republic of Singapore (1980 Reprint) (“Singapore Constitution”) and that 13 the mandatory death penalty was arbitrary and violated Article 12(1) of the Singapore Constitution. [27] Article 9(1) of the Singapore Constitution states that “No person shall be deprived of his life or liberty save in accordance with law”. It corresponds with Article 5 of the Federal Constitution of Malaysia on liberty of a person. [28] Article 12(1) of the Singapore Constitution states that “All persons are equal before the law and entitled to the equal protection of the law”. It corresponds with Article 8 of the Federal Constitution of Malaysia on equality. [29] In a nutshell, the Privy Council in Ong Ah Chun (supra) held that the MDA, in particular s.15 (which provides for the rebuttable presumption of drug trafficking) and the provision in s.29 and the Second Schedule (which provide for the mandatory death penalty for drug trafficking) are not inconsistent with Articles 9(1) and 12(1) of the Singapore Constitution. In the last two paragraphs of the judgment, Lord Diplock stated: “ In their Lordships’ view there is nothing unconstitutional in the provision for a mandatory death penalty for trafficking in significant quantities of heroin and morphine. The minimum quantity that attracts the death penalty is so high as to rule out the notion that it is the kind of crime that might be committed by a good Samaritan out of the kindness of his heart as was suggested in the course of argument. But if by any chance it were to happen, the prerogative of mercy is available to mitigate the rigidity of the law and is the long-established constitutional way of doing so in Singapore as in England. In the instant cases the law required that sentences of death should be imposed. There is no substance in the contention that 14 this requirement of the law is inconsistent with the Constitution. The appeals must be dismissed.” (emphasis added) [30] In Lau Kee Hoo (supra), the Federal Court considered the following question: “Whether or not the mandatory death sentence provided under section 57(1) of the Internal Security Act, 1960, is ultra vires and violates Articles 5(1), 8(1) and 121(1) of the Federal Constitution”. The Federal Court then held, inter alia, as follows: “Held: (1) it is clear from article 5(1) of the Federal Constitution that the Constitution itself envisages the possibility of Parliament providing for the death penalty so that it is not necessarily unconstitutional; …

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(4) Capital punishment is not unconstitutional per se. In their judicial capacities judges are in no way concerned with arguments for or against capital punishment. Capital punishment is a matter for Parliament. It is not for judges to adjudicate upon its wisdom, appropriateness or necessity if the law prescribing it is validly made;

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(5) all criminal law involves classification of individuals for purpose of punishment. Equality before the law and equal protection of the law require that like should be compared with like. What article 8(1) assures to the individual is the right to equal treatment with other individuals in similar circumstances. Everybody charged under section 57(1) of the Internal Security Act, 1960, is liable to the same punishment and therefore it is not discriminatory;

Subsection

(6) It is the function of the legislature not the judiciary to decide the appropriate punishment for persons charged under the Internal Security Act and the Arms Act. Provided that the factor which Parliament adopts 15 as constituting the dissimilarity in circumstances which justifies dissimilarity in punitive treatment is not purely arbitrary but bears a reasonable relation to the object of the law there is no inconsistency with article 8(1) of the Constitution. Article 8(1) is concerned with equal punitive treatment for similar legal guilt, not with equal punitive treatment for equal moral blameworthiness;

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(7) there is nothing unusual in a capital sentence being mandatory and indeed its efficacy as a deterrent may be to some extent diminished of it is not.” [31] Following Ong Ah Chuan (supra), and Lau Kee Hoo (supra), we are of the considered opinion that the learned Judge was not plainly wrong, nor had he erred in fact or in law in deciding that the present case before him is not a special case under s.84 of the CJA which makes it imperative for him to refer the purported constitutional questions, in particular the 3rd Question, to the Federal Court for a decision. The questions are not new as can be seen from the numerous cases which have been decided on the matter. [32] The Appellant further submitted that the Court, in the exercise of its interpretative jurisdiction, shall also have regard to the Universal Declaration of Human Rights 1948 (“UDHR”) as an aid to interpreting Part II of the Federal Constitution. The UDHR has been statutorily recognised as such an aid for Malaysia’s Human Rights Commission in its duties to uphold human rights in Malaysia (see s.4(4) and s.2 of the Human Rights Commission of Malaysia Act 1999). In this regard, s.39B(1)(a) of the DDA read together with s.39B(2) of the DDA fail to afford fundamental rights of due process in the imposition of the mandatory death sentence with the result that the sentence provided for by s.39B(1)(a) of the DDA read 16 together with s.39B(2) of DDA constitute an arbitrary deprivation of life. This is contrary to Article 5 of the Federal Constitution. [33] The Appellant further submitted that s.39B(1)(a) of the DDA read together with s.39B(2) of DDA are incompatible with the requirement that the death penalty may only be imposed after a judicial hearing where the sentence is not mandated in advance and/or where all mitigating factors relevant to the individual and the commission of the offence may be taken into account by the Court in determining whether such a penalty is appropriate in the individual case. The said provisions result in arbitrary and grossly disproportionate penalties including by reason of the excessively broad definition of “trafficking” in s.2(1) of the DDA. [34] The Appellant relied on several international law cases to emphasise the point that there is now an “emerging recognition that the imposition of the mandatory death penalty is cruel and/or inhuman and amounted to an arbitrary deprivation of life” (see Indian Supreme Court cases of Bachan Singh v. The State of Punjab 2 SCC 684, and Mithu v. State of Punjab [1983] 2 SCR 690, US Supreme Court case of Woodson v. North Carolina [1976] 428 US 280, Belize Privy Council case of Reyes v. The queen [2002] 2 AC 235, Jamaica Privy Council case of Watson v. The Queen (Attorney-General for Jamaica Intervening) [2005] 1 AC 472, Uganda Constitutional Court and Supreme Court cases of Kigula v. Attoney General of Uganda (dated 10.6.2015 and 21.1.2009 respectively, both unreported, but in the High Court ABOA Tab 19 pg 551), and the Kenya Court of Appeal case in Mutiso v. Republic of Kenya Criminal Appeal No. 17 of 2008 (Judgment dated 30.7.2010) (see High Court ABOA Tab 20 pg 629). 17 [35] The Appellant submitted that reference to the Federal Court will resolve the dispute by speedy and economical end as provided in s.84(2) of the CJA. [36] While we agree with the Appellant’s submissions that both the High Court and this Court have no jurisdiction to decide on constitutional question, we do not think that by the mere filing of the Application under s.84 of CJA, it is an automatic right of the Appellant, and therefore the automatic duty of the High Court, to refer the purported constitutional questions to the Federal Court for a decision if the Application did not pass the “special case” test stipulated in s.84 of the CJA, and rules 32 and 33 of the RFC 1995. [37] We further considered the following rule 76 of the Rules of the Court of Appeal 1994 (“RCOA”) which was cited to us by learned Counsel for the Appellant: “76. Ancillary powers of the Court The Court shall exercise, for all purposes incidental to or arising from any application or appeal, all the powers which, under the provisions of any written law in force in the place of trial at first instance, were vested in the trial Judge, whether before, during or after the trial, to the extent that such powers may be applicable to the circumstances of an application or appeal to the Court.” [38] In the light of our decision holding that the learned Judge was not plainly wrong in the exercise of his discretion in not finding the Appellant’s case as a special case for the three Questions to be referred to the Federal Court, we are not persuaded by learned counsel for the Appellant that this Court shall exercise its powers under rule 76 of the RCOA in this Appeal to refer the three Questions to the Federal Court. Alternatively, neither do 18 we think it necessary for us to order that the case be remitted to the High Court for the said Court to refer the three Questions, in particular the 3rd Question, to the Federal Court for a decision pending the trial. [39] We are of the firm opinion that the function of the Courts is to interpret the law, and not to declare the mandatory death penalty under the impugned provisions of the DDA as unconstitutional. It is the legislature, being the policy-maker, which has to amend the DDA and abolish the mandatory death sentence if it thinks that it is cruel and harsh, and a draconian law which is not in keeping with international trends, and “is inconsistent with the Federal Constitution for being arbitrary and disproportionate and for failing to take into account individual mitigating circumstances”. [40] Finally, it is appropriate for us to restate what Raja Azlan Shah (as His Royal Highness then was) said in the celebrated Federal Court case of Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187 at pg 188: ‘The question whether the impugned Act is “harsh and unjust” is a question of policy to be debated and decided by Parliament, therefore not meet for judicial determination. To sustain it would cut very deeply into the very being of Parliament. Our courts ought not to enter this political thicket, even in such a worthwhile cause as the fundamental rights guaranteed by the Constitution, for as was said by Lord Macnaghten in Vacher & Sons Ltd. V. London Society of Compositors(1): “Some people may think the policy of the Act unwise and even dangerous to the community. Some may think it at variance with principles which have long been held sacred. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The 19 duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature.” It is the province of the courts to expound the law and “the law must be taken to be as laid down by the courts, however much their decisions may be criticised by writers of such great distinction” – per Roskill L.J. in Henry v. Geopresco International Ltd.(2) Those who find fault with the wisdom or expediency of the impugned Act, and with vexatious interference of fundamental rights, normally must address themselves to the legislature, and not the courts, they have their remedy at the ballot box.’ CONCLUSION [41] Based on the foregoing considerations, we find no merit in the Appeal. The Appeal is dismissed and the decision and order of the High Court is affirmed. Dated : 12 July 2018 YEOH WEE SIAM Judge Court Of Appeal, Malaysia Putrajaya 20 Counsels/Solicitors For the Appellant : Gopal Sri Ram Chih Yan Leng Damien Chan Messr Rashid Zulkifli For the Respondent: DPP Awang Armadajaya Bin Awang Mahmud DPP Nurulhuda Nur ‘Aini Binti Mohd Nor DPP Nurshafini Binti Mustafha Attorney-General’s Chambers, Malaysia