Court Of Appeal Throws Out Legal Challenges By Convicted Foreign Drug Trafficker Yong Vui Kong

SINGAPORE — The punishment of caning is not unconstitutional, the apex court ruled yesterday, throwing out the latest in a string of legal challenges mounted by convicted drug trafficker Yong Vui Kong.

After he became the first to escape the gallows following changes to the mandatory death penalty regime, the 26-year-old Malaysian last year sought to be spared from the 15 strokes of the cane he was re-sentenced to, by arguing that the punishment violated the Constitution.

However, his bases for the contention that caning is tantamount to torture were dismissed by the Court of Appeal yesterday.

Prescribed as a punishment for selected crimes in Singapore, caning differs from the cases defined as torture under a United Nations convention, which either involved “severe and indiscriminate brutality”, or extra-legal acts of abuse in interrogations and war crimes, said the court, which was presided over by Chief Justice Sundaresh Menon.

There are also legal requirements, enshrined in statute, on how the punishment is carried out here, the judges added. For example, a medical officer must be present and caning starts and continues only if the offender is certified to be fit enough.

“It is undeniably the case that caning inflicts a considerable level of pain and suffering on a prisoner. But this level of pain and suffering is far exceeded by that endured by the victims in those cases where courts held that the conduct in question amounted to torture,” they said.

The judges, who included Appeal Judge Andrew Phang and Justice Tay Yong Kwang, added that these statutory requirements act as “safeguards” to ensure caning in Singapore’s prisons “does not breach the high threshold of severity and brutality that is required for it to be regarded as torture”.

For instance, caning is administered on the buttocks, which minimises the risk of injury to bones and organs, they said. It is also carried out in private and out of sight of other prisoners.

The rattan, which is soaked in water beforehand to prevent it from splitting and shearing the skin, is also treated with antiseptic, while the strokes of the cane are “meted out in a measured and controlled manner at regular intervals”, the judges added.

How international law norms regard caning is also irrelevant, the court said, since Parliament has prescribed for caning under Singapore’s laws, and the judiciary is bound to implement legislation, as long as they are not incompatible with the Constitution.

A similar line of reasoning defeats another of Yong’s argument against caning, which was that it is too irrational and arbitrary to be regarded as law, since its deterrent effect is unclear.

In response, the judges said: “The simple answer is that sentencing policy is a matter for the legislature and it is not for the courts to judge whether a particular type of sentence prescribed by Parliament is justified as a matter of deterrence.”

Yong’s argument that caning discriminates against men under 50 — the punishment is not carried out on an offender above that age — is also without merit, the judges said.

This differentia clearly serves the objective of ensuring that only those who are physically fit to be caned suffer the punishment, they said.

In addition, the criteria for exclusions are policy decisions that Parliament is entitled to make and “there is no justification for us to interfere”, the judges added.

Yesterday’s court decision marked the end of a series of legal bids Yong has launched since he was caught in 2007 as a 19-year-old for trafficking 47.27g of heroin.

These ranged from his appeal against the compulsory death sentence originally handed down to him to his challenge on the lack of discretion for the President to grant clemency.

Suspended from legal practice pending a psychiatrist’s assessment, Yong’s lawyer M Ravi was in court yesterday to observe proceedings.



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