MISUSE OF DRUGS (AMENDMENT) BILL

Order for Second Reading read. 2.00 pm

The Minister for Home Affairs (Prof. S. Jayakumar): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Sir, the main aim of this Bill is to remove the practical difficulties in applying the existing presumption in section 17 of the Act arising from a recent Court of Criminal Appeal decision known as Lee Ngin Kiat v Public Prosecutor.

If I may explain, section 17 of the Misuse of Drugs Act states that where a person is proved to have had in his possession more than a stipulated quantity of any of the controlled drug specified therein, he is presumed, until the contrary is proved, to traffic in that controlled drug. In Lee v Public Prosecutor, the Court of Criminal Appeal held that where the prosecution seeks to rely on such a presumption clause to charge a person for trafficking in a controlled drug, to enable the accused to rebut the presumption, the prosecution must state in the charge the exact manner in which the accused had intended to traffic, ie, whether he had intended to sell, give, administer, transport, send, deliver or distribute that controlled drug without lawful authority or offer to do any one of these acts.

Sir, section 17 was introduced by Parliament to deal with the situation where a person was caught in possession of a certain quantity of a controlled drug which is clearly meant to be used for trafficking. But as he was arrested before he could have the opportunity to carry out his intended act of trafficking, there is no other evidence to show that he had intended to traffic in that controlled drug. Therefore, while we respect the Court of Criminal Appeal's decision in that specific case, such a ruling is inconsistent with the intention of Parliament in enacting section 17.

To further explain, if the prosecution is able to produce evidence of how he had intended to traffic in that controlled drug, then there will not be a need for the prosecution to invoke the presumption at all. Furthermore, such a ruling is impractical in such cases, because in those cases the only evidence that the prosecution can prove is the act of possession by the accused of a controlled drug in excess of the quantity specified by section 17. It is therefore impossible for the prosecution to specify the manner in which the accused had intended to traffic the drugs in his possession. We will have to read the mind of the accused. For the prosecution in these circumstances to specify the intended mode of trafficking in the charge will be most arbitrary.

The Bill, therefore, gives effect to Parliament's intention in enacting the presumption in section 17 which has always been that when a person has been proved to be in possession of a controlled drug beyond a certain amount, he is presumed to possess the drug for the purpose of trafficking and should be dealt with as if he has committed the offence of trafficking in that drug. Once the presumption is invoked, there is no need to show the overt act of trafficking which he had intended to do. Consequently, there is also no need for the prosecution to specify the particulars of his intended act of trafficking in the charge.

To remove the uncertainty and practical difficulties caused by the case of Lee in applying the presumption, clause 3 of the Bill seeks to insert a new subsection (2) to section 5 of the Act to provide that a person who is in possession of a controlled drug for the purpose of trafficking commits the offence of trafficking in that drug. Correspondingly, clause 4 seeks to amend section 17 to provide that where a person is proved to be in possession of a controlled drug in excess of the quantity specified under the section, he is presumed to be in possession of the drug for the purpose of trafficking. The presumption is rebuttable by the accused showing that his possession of the drug was not for the purpose of trafficking but for some other purpose, eg, for his own consumption. To some extent, we are reverting to the wording in the Act before our 1989 amendment.

Sir, the other provisions of the Act deal with new definitions of controlled drugs. I must ask the Members' indulgence to bear with me as I take them through these provisions because they are quite technical in nature.

Sir, we have taken the opportunity in this Bill to revise the definitions of some of the controlled drugs in the Act to put them on a more practical and scientific basis, especially opium and cannabis resin. These new definitions were arrived at after consultations with the Attorney-General and the experts in the Department of Scientific Services (DSS).

First, opium. The current definition of opium only refers to its physical attributes, namely, that of a "coagulated juice obtained from any plant from which morphine may be produced." In practice, besides physical examination of the substance suspected to be opium, the chemists in the Department of Scientific Services also conduct a chemical test on the substance to test for the presence of morphine and any one of four other main alkaloids, namely, narcotine, codeine, thebaine and papaverine. As these alkaloids are only present in opium and not in any other natural product, the presence of these alkaloids will confirm that the substance is opium. According to the experts in the DSS, this is a more scientific way of proving opium and is a universal method adopted by chemists in other countries.

Clause 2(b) of the Bill therefore seeks to amend the definition of "opium" to read as follows:

''opium' means any substance containing, in any quantity, morphine and one or more of the following, namely codeine, narcotine, papaverine or thebaine, but does not include poppy straw which is not mixed in any such substance.'

Proof that a substance is opium as defined will henceforth be based on a scientific basis. This new definition will also do away with the need to define opium to include raw, prepared or medicinal opium in the First Schedule to the Act. However, it is necessary to exclude "poppy straw" from the definition as trafficking in poppy straw (which also contains small amounts of morphine and any one of the four main alkaloids) in whatever quantity is not a capital offence under existing laws.

For the purpose of capital offences involving opium, the existing weight of 1,200 grammes of opium (as newly defined) will be retained but it will be qualified by a new condition that the amount of morphine found therein should be more than 30 grammes. This new condition is consistent with the existing capital offences for other controlled drugs containing morphine under the Second Schedule.

Next, cannabis. Cannabis is currently defined under the Act to mean "any part of any plant of the genus Cannabis from which the resin has not been extracted, by whatever name it may be designated".

In practice, the DSS relies on three types of tests to prove that the substance seized is cannabis as defined. First, there is a visual examination to establish the physical appearance and characteristic odour of cannabis. Next, a microscopic examination is carried out to detect the presence of resin, cystolithic trichomes and non-cystolithic trichomes which are unique to cannabis. Lastly, chemical tests are carried out to detect the presence of tetrahydrocannabinol and cannabinol. These are the two main alkaloids, I am told, which distinguish cannabis from other hallucinogenic drugs. We have been informed by DSS that they are also the psycho-active ingredients in the plant which causes hallucination. These alkaloids can be found in other parts of the plant (except the roots) which do not contain resin. In view of this and on the advice of the DSS, my Ministry proposes to amend the definition of cannabis to remove the misconception that cannabis is a controlled drug only if resin is present in that part of the plant. Clause 2(a) of the Bill seeks to amend the definition of "cannabis" as follows:

"`Cannabis' means any plant of the genus Cannabis, or any part of such plant, by whatever name it is called."

It is not necessary to provide for tetrahydrocannabinol and cannabinol to be included in the definition because, according to DSS, the plant material cannot be considered as being of the "genus cannabis" without their presence.

Next, cannabis mixture. The Central Narcotics Bureau has detected some cases in which cannabis was trafficked in mixed form, ie, the plant is broken up and mixed with other vegetable matter such as tobacco. Currently, this does not attract the death penalty.

To deter traffickers from trafficking in large amounts of cannabis in this form, a new capital offence will be created for this type of drug. As the amount of cannabis in such a mixture does not usually fall below 50%, it is proposed that for the purpose of capital offences, trafficking in a cannabis mixture should be in amounts of more than 1,000 grammes (as compared to more than 500 grammes in the case of cannabis alone). This will give an allowance of 500 grammes for any non-cannabis material in the mixture. For this purpose, clause 6(c) of the Bill amends the Second Schedule to provide for capital punishment for trafficking in more than 1,000 grammes of cannabis mixture. To be consistent with the penalties provided for other types of drugs, the same clause also provides that trafficking in between 660 grammes and 1,000 grammes of cannabis mixture will attract a penalty of between 20 and 30 years of imprisonment and 15 strokes of the cane.

Consequently, clause 2(a) of the Bill seeks to introduce a new definition of "cannabis mixture" as follows:

"`Cannabis mixture' means any mixture of vegetable matter containing tetrahydrocannabinol and cannabinol in any quantity."

As explained earlier, tetrahydrocannabinol and cannabinol are the two main alkaloids distinguishing cannabis from other hallucinogenic drugs. Detection of these two substances by the DSS chemist is sufficient scientific proof that the substance is cannabis mixture.

Finally, cannabis resin. Because of the reasons I have stated concerning the psycho-active ingredients in the cannabis plant being tetrahydrocannabinol and cannabinol, we are therefore adopting the same scientific approach. Clause 2(a) of the Bill amends the definition of cannabis resin accordingly.

In concluding, Sir, these amendments will clarify both the intention of Parliament with respect to the matters I have mentioned and enable the courts to give full effect to Parliament's intention. I wish to emphasize that the amendments will not have retrospective effect and will not affect any cases pending trial in the Courts.

Sir, I beg to move.

Question proposed.

Mr Zulkifli bin Mohammed (Jalan Besar GRC): Mr Speaker, Sir, I rise in support of this Bill.

Sir, if we follow closely news reports on drugs and its associated problems on the world scene, we cannot but feel shivers down our spine when we reflect on the untold miseries and havoc it is causing to many countries in the world. The fact remains that the drug menace is ever present over the horizon threatening the well-being of society if it is allowed to go unchecked.

We in Singapore are indeed blessed to have tough and stringent laws to keep the supply of drugs under control. In addition, our enforcement agency, the Central Narcotics Bureau, must be commended for making this possible with their relentless efforts and ongoing vigilance for which there must be no let-up, mindful that drug traffickers and drug couriers are using new and more sophisticated methods in smuggling drugs. Despite our mandatory death sentence, drug dealers still continue to use Singapore for their nefarious activities. We must not forget that Singapore's proximity to the Golden Triangle will always make us vulnerable to the drug menace.

Coming back to the Bill, Sir, I would like to touch on the proposal to re-word the presumption clause under section 17. If I could recall, this presumption clause was last amended in 1989. Sir, I am not a lawyer but, as the Minister has mentioned, the current re-wording of the clause will make it almost similar in wording as spelt out in the Act prior to the 1989 amendment. As such, Sir, I would like to seek the Minister's clarification on this matter.

Prof. Jayakumar: Mr Speaker, Sir, to touch on the specific point raised by Mr Zulkifli, as I have mentioned in my Second Reading speech, to some extent, we have reverted to the wording in the pre-1989 position where the wording was also similar for the purpose of trafficking. In 1989, we changed it to overcome some problems in one or two cases. The difference between this present drafting and the pre-1989 drafting is that although there was a presumption in the 1973 legislation up to 1989, at that time, apart from the presumption, there was no substantive offence written into the law of possession for the purpose of trafficking. Now, we have, in a sense, tried to plug that loophole by not only having the presumption clause, but also having created a substantive offence of possession for the purpose of trafficking.

I would like to be able to say, and to assure the House, that there will be no further amendment to the Misuse of Drugs Act. But although we have sat down with the draftsman and we believe that we have overcome the problems, we must get the law in tandem with the evolution of case law. From time to time, it is unavoidable that where we find that case law develops in a manner which runs counter to the intention of Parliament, we may need to fine-tune the legislation, but I hope that it will not be necessary for a long time to come.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Prof. S. Jayakumar].

Bill considered in Committee; reported without amendment; read a Third time and passed.