Yong Vui Kong v Public Prosecutor
Court of Appeal, Singapore
 SGCA 11
4 March 2015
Article 9(1) Constitution of Singapore: No deprivation life or personal liberty unless in accordance with law
Article 12(1) Constitution of Singapore: Equality.
Section 5(1)(a) and 33B(1) of the Misuse of Drugs Act: Offence of trafficking controlled drugs and mandatory death or life imprisonment and/or caning penalties.
This is an appeal by Yong Vui Kong (the “Appellant”) against his sentence to life imprisonment and 15 strokes of the cane for drug trafficking offences. He argued that caning is unconstitutional, as it amounts to torture; that it is illogical and serves no legitimate purpose; and that it is discriminatory, as it is not applied to women or to men above the age of 50.
Issue and resolution:
Judicial use of corporal punishment. The Court had to rule on the legality of sentences of corporal punishment. The Court rejected all of the Appellant’s arguments and ruled that these sentences are lawful.
The Court noted that there is no express prohibition of torture in the Constitution or in the domestic statutes of Singapore. Additionally, in the view of the Court, previous decisions concerning the prohibition of torture are generally narrow; concerned with the practice of torturing suspects or witnesses for the purpose of extracting evidence and confessions; and do not cover the treatment of criminals after they were found guilty for their crimes.
Nonetheless, the Court considered that there is strong evidence that the prohibition against torture is today a peremptory norm of International Law, meaning that it is such a fundamental right that no derogation from it is allowed. However, Singapore has not ratified the UN Convention Against Torture (CAT), to which 155 other States have acceded.
Regardless of the status of the norm in international law, the Court decided that it is bound to implement legislation that has been validly passed by Parliament. It said that section 33B(1)(a) of the Misuse of Drugs Act is unambiguous and mandatory and there is no room for the Court to ‘interpret’ the law in a manner that would allow the Appellant to escape the stipulated sentence of caning.
The Court also rejected the Appellant’s argument that his sentences breaches the Geneva conventions and CAT, because the Geneva Convention is concerned with the treatment of prisoners of war and does not lay down a definition of torture that is of general application to everyone and the CAT specifically excludes pain and suffering arising from “lawful sanctions”. Furthermore, cases from international courts that considered the types of conduct that constitute torture involved severe levels of pain, serious physical injuries and mental suffering that far exceed that caused by caning; none of them concerned the execution of a punishment prescribed by law and implemented in accordance with legal requirements.
The Court concluded that sentencing policy is a matter for the legislature and it is not the role of the courts to pass judgment on whether a particular type of sentence prescribed by Parliament is justified as a matter of deterrence or otherwise. Adding that the use of age as a justified proxy to screen out those who are likely to be unfit for caning is also plainly reasonable as there is an inverse relationship between one’s age and one’s physical condition.
The court rejected all three grounds of the Appellant’s case and dismissed the appeal against sentence, although it did acknowledge that international opinion is increasingly turning against the administration of corporal punishment.
Though this case does not concern a juvenile offender, corporal punishment is a lawful sentence for male children over the age of seven. The Court’s decision does not, however, explicitly address the rights of the child.
The Appellant was originally given the death penalty, which was applicable under the Misuse of Drugs Act. The Appellant successfully challenged this sentence on appeal in another case and his sentence was subsequently substituted with life imprisonment and caning pursuant to a legislative amendment of the Act.
For more information on the issue of inhuman sentencing of children, including a selection of case law, please see CRIN’s ‘Inhuman sentencing‘ campaign.
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.