Use of illicit drugs as medicinal remedies and the death sentence
Publisher: Singapore Academy of Law
Two unusual cases of possession and processing of illicit drugs such as cannabis and marijuana by individuals into medicinal products and sold / distributed, by them, to the public have come under the scrutiny of the law - one in Singapore, in 1997, and the other in Malaysia currently.
In both countries, the individuals were prosecuted in the High Court for trafficking in illicit drugs. In each case, a substantial amount of the drug possessed was solely, as claimed, for the same innocent purpose of alleviating a medical condition, and not for addiction. However, in law, the acts fell under the presumptions of trafficking, and, hence, attracted the death penalty unless the presumptions were rebutted by strong evidence.
Therefore, the defence in both cases tested the limits of the enforceability of the drug laws as an act of trafficking. The Malaysian case is currently pending an appeal. Singapore's appellate court, however, has made an instructive interpretation of the drug law in question and as to the scope of its application.
MUHAMMAD LUKMAN'S CASE – MALAYSIA
In the Malaysian case, as reported in the local press, there has been a strong public reaction over Muhammad Lukman being found guilty under Section 39B of the Dangerous Drugs Act 1952 by the High Court. He was sentenced to death for possession, processing and distribution of tetrahydrocannabinol (THC) – the main distillate of cannabis – and additionally, possession of cannabis. The quantities involved were 3.1 liters of oil containing THC, 1 kilogramme of a substance containing THC, and 279g of cannabis. These were above the threshold limits allowed by the law such that they constituted the capital offence of trafficking.
Muhammad's defence before the trial judge as reported by the media was that the items were solely used for purposes to help patients with chronic sicknesses ease debilitating conditions, such as persistent pain, nausea related to chemotherapy and lack of appetite due to HIV/AIDS. He had two witnesses who testified that their illnesses had been assuaged. Muhammad also testified that he had occasionally collaborated with the Malaysian Ganga Education Movement, served some 800 patients and that the items in his possession were not meant or used for personal addiction or abuse.
His defence was dismissed by the Court on the grounds that the Dangerous Drugs Act prohibits any form of the offence under Section 39B and that the use of cannabis oil or any ointment produced from cannabis is not recognised or approved for their medicinal qualities. Further, no approval had been sought from the relevant authorities for its medicinal use. In short, the purpose of the use was not relevant in the circumstances.
Defence counsel, Farhan Maaruf, has filed an appeal against the conviction and sentence amidst calls to pardon his clients.
NG YANG SEK'S CASE, 1997 – SINGAPORE
Muhammad's case is very similar to the one involving one Ng Yang Sek ('Ng'), who hailed from China and had practised in Traditional Chinese Medicine in Singapore. He was convicted by the High Court, under Section 5 the Misuse of Drugs Act (Chapter 185), of trafficking in morphine – a product of marijuana – albeit for use as a Chinese herbal medicinal remedy.
The charges, factual matrix and decision
The two capital charges preferred against Ng were as follows:
The first was for transporting in a taxi, without any authorisation, for the purpose of trafficking in 3,449g of opium which was wrapped in a cloth bag, containing not less than 53.93g of morphine as found after scientific analysis.
The second, for possessing 13,956g of opium in his home, found mostly in a large aluminium pot containing not less than 111.66g of morphine, for the purpose of trafficking as well. Unauthorised trafficking in more than 30g is a capital offence.
The Judge, made the following findings of fact:
- Ng had strong evidence that he was practising and had knowledge of traditional Chinese medicine passed down from his family members, he having emigrated from China in 1958 and having his practice, in a Chinese medical hall in Singapore. That the opium he had in his possession was indeed for use to manufacture medicinal plasters. He had several manuals in Chinese, which he produced in court, all neatly written, passed down to him as the eldest son, for the practice of Chinese medicine and treatment of sprains, bruises and traumatic injuries.
- On the day of his arrest, he was taking the opium in a taxi to Ponggol, a coastal village to bury it under a Toh Pit tree, (in a shallow swampy terrain) for about 3 weeks to enhance the efficacy of the opium and take out its heat, before forming a poultice with herbs and sweet potatoes and then using it to make plasters. The Toh Pit tree, according to Chinese medical literature, is a medicinal plant.
- Two Chinese medical institutions in Singapore testified that the preparation was done from personal experience based on medical books, although not commonly practised in Singapore, but that the plasters might help for sprains, rheumatism and so on. Then, Ng produced witnesses who testified that their rheumatic pain in their knees was alleviated after using the plasters or that their back ache had got better.
The judge accepted the evidence of the appellant that the opium-based plasters were for use as medical remedies. However, under the strict regime of the Misuse of Drugs Act or the exempting provisions of the Regulations made thereunder, authorisation or exemption was needed for the use for medical purposes. No authorisation or exemption for the purpose intended had been sought or granted. The judge held that the purpose of performing acts whether beneficent or harmful with drugs was irrelevant and the opium in whatever form had been distributed and the 'distribution' came within the meaning of the definition of 'trafficking'. As a result, Ng was convicted of trafficking which he appealed against.
Decision of the Court of Appeal
The Court of Appeal, accepted all the findings of fact of the High Court judge. Nonetheless, the appellate court unanimously allowed Ng's appeal against the convictions of trafficking, quashed the death sentence and reduced the charge to possession of the drugs. The reasons for allowing the appeal were given by Chief Justice Yong Pung How (with Judge of Appeal, M Karthigesu and Judge of Appeal LP Thean sitting with him). They are indeed instructive. Starting with Parliament's intention, Yong stated:
''Parliament as the trial judge correctly pointed out had 'foreseen the need for a very strict control on the possession and movement of drugs to Singapore and also within it. However, in our opinion, this does not lead inexorably to the conclusion that what the appellant was guilty of doing was ''trafficking…”
The conclusions of the Court, briefly put, are:
i. There are situations where it would be too formalistic to apply the Misuse of Drugs Act literally, especially, in in view of its avowed purpose and the draconian sanction for trafficking, and that the case is one such situation where "it is not necessary to sacrifice the object pursued by Parliament on the altar of formalism" when interpretations pay "undue deference to the letter of the law and not its object".
ii. The purpose of the Misuse of Drugs Act was to distinguish between dealers in drugs and their addict victims. Further, that the less serious act of possession under the Act, acknowledged the qualitative difference between acts of trafficking and acts of possession.
iii. Adopting the proposition that what was not authorised by the regulations must amount to trafficking goes too far. The regulations, in our opinion, do not legislate on the breath and narrowness of the definition of trafficking.
iv. The provision relating to the meaning of the verb “traffic” was too strictly construed by the trial judge and that the application of the plain meaning of the Section 2 definition of “traffic” (that is, in the interpretation section of the Act) can, in certain circumstances, be construed in the light of the purpose of the legislation to avoid injustice.
v. That in its judgment, it was clear that Ng's conduct should not attract the disapprobation that is reserved for the drug dealers who exploit the vulnerability of addicts and who spread the poison of narcotic addiction in society. The dangers associated with the appellant's possession of drugs, for example, that they could advertently fall into the wrong hands, are under the scheme of the Misuse of Drugs Act punishable under Section 8 (possession) and not Section 5 (trafficking).
The Appellate Court sentenced the accused to two years imprisonment on the reduced charges of possession and imposed a fine of $10,000 on him. One of the persuasive considerations for the lower sentence was that the Appellant had not told his patients the ingredient used in the plasters. (The Court of Appeal's decision in Ng Yang Sek v Public Prosecutor is reported in the Singapore Law Reports (Reissue)  SGCA, 37).
The theory of justice is alert to differences and nuances in any stringent law, and judges will translate it, nevertheless, to achieve a just result, which in turn produces a just rule of law. Perhaps the decision in Ng's case as a persuasive authority from Singapore's highest court, will bear consideration in respect of any final outcome in Muhammad's case.
Amarjeet Singh, SC
Amarjeet Singh was the trial judge in Ng Yang Sek's case when serving as a Judicial Commissioner in the High Court. He is currently a Senior Counsel and a Consultant in the law firm of Withers Khattar Wong, Singapore.
This article was first published in The Edge Malaysia (8 October 2018) at pp 70-71.