SINGAPORE - The highest court in Singapore has rejected a constitutional challenge against provisions in the Misuse of Drugs Act (MDA) that place the onus on an accused drug trafficker to rebut certain presumed facts.

On Aug 28, a five-judge Court of Appeal panel, led by Chief Justice Sundaresh Menon, ruled that the so-called MDA presumptions do not violate the Constitution.

These provisions operate by presuming that an accused person was in possession of drugs or knew the nature of those drugs when a basic fact is proved.

The presumptions are rebuttable, but the burden is on the accused person to disprove the presumed facts.

For instance, a person who has the keys to a place where illicit drugs were found is presumed to have had those drugs in his possession, until proven otherwise.

In a similar vein, a person who has drugs in his possession is presumed to have known the nature of the drugs, until the contrary is proved.

In a written judgment, the judges noted that the presumptions are in place “as a legislative choice to address a problem that is thought to be a scourge on society”.

The court said one facet of the legislative purpose of the presumptions was to overcome the evidential difficulty of proving the state of mind of the accused person.

But Parliament’s decision to enable the prosecution to rely on these presumptions must also be seen alongside its strong policy stance taken to strengthen the hands of the enforcement agencies against drug trafficking.

The panel also comprised Justice Belinda Ang, Justice Woo Bih Li, Justice See Kee Oon and Justice Judith Prakash.

The challenge,

brought by four convicted drug traffickers on death row

, contended that the MDA presumptions violated Articles 9 and 12 of the Constitution and the presumption of innocence.

The legal team for the inmates, who included Assistant Professor Marcus Teo, Mr Eugene Thuraisingam and Mr Suang Wijaya, had argued that Articles 9 and 12 of the Constitution guarantee the “presumption of innocence”.

Article 9 enshrines the right to life and liberty while Article 12 guarantees equality before the law.

They argued that the MDA presumptions violate the presumption of innocence because their effect is to shift the burden of proof in respect of key elements of the offence from the prosecution to the accused person.

Deputy Attorney-General Goh Yihan took the position that the presumption of innocence is a rule of common law and is not part of the Constitution.

In its judgment, the court noted that the legal burden is on the prosecution to establish each element of an offence, generally by presenting evidence to prove its case beyond a reasonable doubt.

However, there is nothing to prevent Parliament from providing that one or more elements of the offence may be established by way of a presumption of law, especially where this is in relation to a logical inference flowing from a basic fact and pertains to matters within the knowledge of the accused person.

The court said the MDA presumptions do not “shift” the overall legal burden of the prosecution to prove the guilt of the accused person.

The burden to prove the offence remains with the prosecution, though it can seek to prove its case by invoking the MDA presumptions, said the court.

“The fundamental rules of natural justice are consistent with, and not offended by, the prosecution’s ability to rely on the MDA presumptions to establish the relevant offence,” said the court.

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Citing a decision by the Privy Council, the court said it was not unconstitutional to require an accused person to bear the burden of disproving the presumed facts on the balance of probabilities, especially where the relevant facts are peculiarly within the person’s knowledge.

The Privy Council was Singapore’s final court of appeal until 1994.

In 1980, it ruled that the presumption of trafficking – where a person in possession of more than a specified quantity of drugs is presumed to be trafficking unless it is proved otherwise – did not contravene the Constitution.

The four inmates – Jumaat Mohamed Sayed, Lingkesvaran Rajendaren, Datchinamurthy Kataiah and Saminathan Selvaraju – were sentenced to death between 2015 and 2018.

Their appeals against conviction and sentence were dismissed between 2016 and 2020.

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The inmates’ first challenge against the presumptions was

dismissed by the High Court in November 2022

.

They filed an appeal, but the appeal was deemed to be withdrawn as they failed to file the necessary documents within the specified deadline.

In June 2023, they filed an application to revive the appeal.

However, the Court of Appeal asked the parties to go beyond the purely procedural questions and to prepare arguments on the substantive points.

The court dismissed the application to restore the appeal.

“Given our finding that there is no merit in the substantive arguments that the applicants hope to pursue in (the appeal), there is no cause to revive (the appeal).”