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Doping, which refers to the illegal use of substances to enhance sporting performance, is a perennial concern in competitive sports. Interestingly, Singapore has had a number of doping cases over the years. For instance, in 2012, seven out of eight athletes tested positive for having consumed prohibited substances during the Singapore National Bodybuilding and Physique Sports Championship.

There are various substances that are abused by sportsmen, with some being more commonly used than others. To this end, the World Anti-Doping Agency (“WADA”) has promulgated the 2022 WADA Prohibited List, which contains ten categories of banned substances which may (1) be prohibited in-competition or at all times, and (2) be specified or unspecified. 

 

This article will elaborate on four types of commonly abused substances in sports, namely: 

  1. anabolic steroids; 
  2. supplements; 
  3. erythropoietins (“EPO”); 
  4. high growth hormone (“HGH”). 

 

1) Anabolic steroids 

Anabolic steroids and diuretics are the most commonly abused substances. So what exactly are they, and why do athletes consume them? 

 

Anabolic steroids are a special type of steroid that stimulates muscle growth, and they are typically consumed by athletes who need to quickly build muscle or speed up recovery from injuries. Examples of athletes who have been known to consume such steroids are professional body-builders and weightlifters. 

 

Anabolic steroids imitate the properties of naturally occurring hormones such as testosterone, given their similar chemical composition. This means that the steroid can activate the body’s testosterone receptors to induce similar or even stronger effects brought about by natural testosterone. One of the key effects testosterone has is to increase muscle mass and boost energy, making this substance an attractive one for athletes who need to build bodies faster in preparation for competitions. 

 

While one of the key reasons behind prohibiting the consumption of these substances is to ensure a level playing field for everyone in competitions, it is also imperative to understand the potential harm that consumption can bring to athletes. Regular consumption of anabolic steroids has been known to increase the risk of hypertension, hyperglycemia and dyslipidemia amongst the athletes who imbibe them. Athletes may also suffer from acne, alopecia and even blood clots which increases stroke risk. 

 

High testosterone levels, on the other hand, are linked to psychiatric complications like psychosis and mood disorders. This explains why doctors avoid prescribing steroids when a patient has psychiatric symptoms as the patient may develop even more severe conditions. One such condition is systemic lupus erythematosus, which is a disease that causes the immune system to attack the body’s tissues and results in tissue damage in the patient’s body.

 

2) Supplements

Some supplements are considered as prohibited substances under the 2022 WADA Prohibited List. The term “supplements” covers a broad category of products, including but not limited to sports foods (protein powders/drinks, energy bars, sports drinks, etc), medical supplements (vitamins, probiotics, minerals, etc), ergogenic substances (caffeine, creatinine, bicarbonate, beta-analine or nitrate), natural products (herbs, roots, etc), weight loss supplements and anabolic supplements.

 

Dietary supplements may also be prohibited substances – these include stimulants such as ephedrine, methylhexanamine, sibutramine (an appetite suppressant that was banned in Singapore since 2010 due to its effect of increasing risks of heart attacks) and 1,3-dimethylamylamine (DMAA). Some of these supplements may also contain other prohibited substances such as anabolic steroids and clenbuterol (a beta-2 agonist approved for asthma in some countries which also has anabolic and fat-burning properties at higher doses).

 

What is especially tricky about this particular class of prohibited substances is that athletes often consume these supplements not knowing that it is prohibited. In a report on elite university-level athletes, it was found that one third of the athletes had little to no knowledge of the supplement(s) that they were taking. Common reasons cited included the assumption of safety due to the wide availability of the supplements, as well as trust in the people who introduced such supplements to them (such as family members or their coaches). 

 

This was unfortunately what happened in a case involving a local para-athlete. Khairi Bin Ishak was tested positive for methandienone (an anabolic steroid) during a routine out-of-competition test. According to him, he had purchased a protein isolate product from a Facebook page of a Malaysia-based company, not knowing that it contained substances which were prohibited. However, his lack of knowledge is not a defence for having violated an anti-doping rule. This is because anti-doping rules are strict liability in nature, and they apply regardless of whether the doping occurred intentionally or unintentionally – as long as someone is found with prohibited substances and/or at least one prohibited substance is found in a supplement, it is a violation. Consequently, the positive result of methandienone alone led to Khairi Bin Ishak being disqualified from the 2018 Commonwealth Games. 

 

This case serves as a cautionary tale for athletes to be aware of the ingredients contained in their supplements. Manufacturers’ assurances may not be reliable, and athletes should always check their supplements with qualified professionals to ensure that they do not contain prohibited substances. Inadvertent doping can happen, so always err on the side of caution!

 

3) Erythropoietins

The third most commonly abused substance used by athletes is erythropoietins. EPOs are erythropoietin receptor agonists, which include darbepoetin and other EPO mimetic agents. EPOs allow more oxygen to be transported to muscle cells, thus helping athletes increase their endurance in competitive sports.

 

Synthetic EPO substances have structures that are different from natural EPOs produced in the body. Nevertheless, like endogenous EPO, they stimulate the production of red blood cells (“RBC”) in the bone marrow by stimulating erythroid progenitor cells, which in turn increases erythropoiesis (the production of RBCs) and ultimately regulates the concentration of RBC and haemoglobin in the blood through a negative feedback cycle. RBCs are responsible for the transport of oxygen throughout the body, so having a higher RBC count is useful as it can increase the athletes’ stamina. EPO also helps to maintain the RBCs and protects them from injury or being destroyed. 

 

However, abuse of EPO will have a negative effect on the body. Short-term effects include weight loss, insomnia, and headaches or dizziness, but there are long-term effects as well. This is because EPO increases RBC count, such that long-term use in healthy adults can increase the risk of stroke, heart attacks and blood clots in the lungs. In addition, EPO abuse may also increase blood pressure which may damage organs such as the heart and kidneys.  

 

The use of EPO by athletes is less common in Asian countries and is largely used only in endurance bearing sports such as cycling. The most well-known case of EPO doping is that of Lance Armstrong, who won six Tour De France competitions before being stripped of all his titles in 2012, after he admitted to using EPO to boost his performance. Interestingly, Lance Armstrong had never failed a single doping test in his entire career which led many to think that the anti-doping efforts by the International Olympic Committee are easily manipulated. 

 

4) Human Growth Hormone

Human growth hormone, as its name suggests, is a growth hormone that is associated with growth function. HGH is a peptide (small protein) hormone naturally produced by the pituitary gland, and is involved in many crucial physiological processes such as stimulating growth of bone and collagen, facilitating turnover of muscle and regulating fat and carbohydrate metabolism. 

 

It is not difficult to see how useful synthetic HGH can be when applied to treat growth disorders and deficiency-state diseases such as Turner syndrome, chronic renal insufficiency and short stature homeobox-containing gene (SHOX) deficiency. HGH is also highly efficient in increasing muscle mass and power and regulating metabolic (fat and carbohydrate) processes. In the context of doping, HGH is particularly attractive because of its efficiency, the absence of severe side effects if well-dosed and difficulty of detection. 


However, if not well-dosed, HGH may cause severe conditions such as nerve damage, swelling and high cholesterol levels. Diabetes and tumour risks also increase with HGH usage. Further, as HGH is administered via injection so as to prevent degradation by the gastrointestinal tract, there is a risk of cross-infection if syringes are non-sterile or contaminated, leading to conditions such as HIV/AIDS and hepatitis. 

 

What is interesting about HGH is the difficulty of detecting the substance. This is because these growth hormones typically have a very short half-life in blood and low concentration in urine. Furthermore, since synthetic HGH is nearly identical to HGH produced naturally by the human body, it is also difficult to differentiate the two. Successful detection of HGH can be achieved through blood tests. 

 

Like EPO, this substance is not commonly abused in Singapore or Asian countries. It is more commonly found to be abused in Western countries, where endurance sports such as cycling and running are more popular and prominent.

 

Conclusion

It is hoped that this article has helped to shed some light on the four most commonly abused substances in sports.

Elite level athletes must always keep in mind that doping is a strict liability offence, which means that ignorance cannot be pleaded as a defence should their sample be found with a banned substance. Thus, athletes should always stay informed about the list of banned or prohibited substances to ensure that they have not unwittingly breached the WADA Code, so as to prevent any unfortunate accidents which may lead to possible sanctions.

 

References 

Fredrik Lauritzen (2022). Dietary Supplements as a Major Cause of Anti-doping Rule Violations. Front. Sports Act. Living, Sec. Anti-doping Sciences https://doi.org/10.3389/fspor.2022.868228

Sport Singapore. Supplements. Government of Singapore. Last accessed on 25 October 2022 from: https://www.sportsingapore.gov.sg/athletes-coaches/anti-doping-singapore/substances/supplements

Geyer, H., Mareck-Engelke, U., Reinhart, U., Thevis, M., and Schänzer, W. (2000). Positive doping cases with norandrosterone after application of contaminated nutritional supplements. Dtsch. Z. Sportmed. 51, 378–382.

Martínez-Sanz JM, Sospedra I, Ortiz CM, Baladía E, Gil-Izquierdo A, Ortiz-Moncada R. Intended or Unintended Doping? A Review of the Presence of Doping Substances in Dietary Supplements Used in Sports. Nutrients. 2017 Oct 4;9(10):1093. doi: 10.3390/nu9101093. PMID: 28976928; PMCID: PMC5691710.

Prather ID, Brown DE, North P, Wilson JR. Clenbuterol: a substitute for anabolic steroids? Med Sci Sports Exerc. 1995 Aug;27(8):1118-21. PMID: 7476054.

Kozhuharov VR, Ivanov K, Ivanova S. Dietary Supplements as Source of Unintentional Doping. Biomed Res Int. 2022 Apr 22;2022:8387271. doi: 10.1155/2022/8387271. PMID: 35496041; PMCID: PMC9054437. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9054437/

Health Direct. Human growth hormone. Government of Australia. Last accessed on 25 October 2022 from: https://www.healthdirect.gov.au/amp/article/human-growth-hormone

Saugy M et al (2006). Human growth hormone doping in sport. Br J Sports Med, 40(Suppl 1): i35–i39. doi: 10.1136/bjsm.2006.027573

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2657499/

National Institute of Drug Abuse (February 2018). Steroids and Other Appearance and Performance Enhancing Drugs (APEDs) Research Report. Last accessed on 25 October 2022 from: https://nida.nih.gov/publications/drugfacts/anabolic-steroids

NHS (13 April 2022). Anabolic Steroid Misuse: Instroduction. Last accessed on 25 October 2022 from: https://www.nhs.uk/conditions/anabolic-steroid-misuse/

National Institute of Drug Abuse (February 2018). Steroids and Other Appearance and Performance Enhancing Drugs (APEDs) Research Report

How are anabolic steroids used? Last accessed on 25 October 2022 from: https://nida.nih.gov/publications/research-reports/steroids-other-appearance-performance-enhancing-drugs-apeds/how-are-anabolic-steroids-used

World Anti-Doping Agency. World Anti-Doping Code: International Standard Prohibited List 2021. Last accessed on 25 October 2022 from: https://ita.sport/uploads/2021/10/2022_Prohibited-List_final_en.pdf

Suresh S, Rajvanshi PK, and Noguchi CT (2020). The Many Facets of Erythropoietin Physiologic and Metabolic Response. Front. Physiol., Sec. Red Blood Cell Physiology.  

https://doi.org/10.3389/fphys.2019.01534

https://www.frontiersin.org/articles/10.3389/fphys.2019.01534/full

Kien Vinh Trinh, Dion Diep, Kevin Jia Qi Chen, Le Huang, and Oleksiy Gulenko (2020). Effect of erythropoietin on athletic performance: a systematic review and meta-analysis. BMJ Open Sport Exerc Med. 2020; 6(1): e000716. doi: 10.1136/bmjsem-2019-000716

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7213874/

Slater G, Tan B, Teh KC. Dietary supplementation practices of Singaporean athletes. Int J Sport Nutr Exerc Metab. 2003 Sep;13(3):320-32. doi: 10.1123/ijsnem.13.3.320. PMID: 14669932. https://journals.humankinetics.com/view/journals/ijsnem/13/3/article-p320.xml

Tian HH, Ong WS, Tan CL (2009). Nutritional supplement use among

university athletes in Singapore. Singapore Medical Journal, 50(2):165-172. http://www.smj.org.sg/sites/default/files/5002/5002a8.pdf

 

Authors’ Biographies

Javan Seow is a 4th Year Undergraduate at the National University of Singapore. He is also currently doing his final year project with the NUS Forensic Science Laboratory. He aspires to join the Singapore Police Force after he graduates. 


Celine Cheow is a recent graduate from NUS Pharmacy. As a project manager of the forensic toxicology team in CJC-F in AY21/22, she guides the team with her knowledge of drugs, and edits articles relating to forensic toxicology. 


Wong Wai Xin is a 3rd Year Undergraduate from NUS Chemistry. She is interested in practical applications of Chemistry in everyday life, and aspires to join the Ministry of Education as a teacher after graduation. 



Zaher Wahab (“Zee”) is a Sophomore at the SUSS School of Law and is also a Doping Control Officer with Anti-Doping Singapore. He looks forward to practising Criminal Law & Sports Law when called to the Bar. Currently, Zee serves as President of the Singapore Chapter of the Asian Law Students Association and strives for greater interaction and collaboration among students from the 3 Law Schools. This is his second published article on Anti-Doping & Sports Law.
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CJC-F, CJC-F Announcements, CJC-F Understanding Forensics, CLD Criminal Law Basics, Uncategorized

INTRODUCTION


In the previous article “Singapore’s Misuse of Drugs Act – A Primer” (https://nuscriminaljustice.com/singapore-misuse…ugs-act-a-primer/), the basic statutory rules governing certain offences set out in the Misuse of Drugs Act, that of possession, consumption, trafficking and importation, were summarized. This article seeks to briefly summarise how the Court uses the sentencing ranges, referred to in the previous article, to sentence an offender.

 

In this regard, the Courts have developed certain sentencing frameworks for certain drugs, so that both the Prosecution and the accused person would know what ought to be the rough estimate of the  sentencing range that an accused person would be liable to.

There is a large variety of drugs that are present in the world. Thus, not all the frameworks that have been established by the Courts will be covered here. Further, the Courts have not set out sentencing frameworks for all the drugs as not all the drugs have involved a conviction in a Court of law. Even if there are such convictions, they do not occur often enough to warrant a sentencing framework for that particular drug.

For the avoidance of doubt, the frameworks set out below concern that of trafficking of three drugs, namely diamorphine, cannabis and methamphetamine. This is because they are relatively common in occurrence, alongside consumption which is governed by the MDA. In addition, among the four offences discussed in the previous article, trafficking is the one which has the most substantial case law.

This article is written with the idea of introducing readers the basic rules and laws surrounding judicial frameworks.



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UNDERLYING RULE INVOLVING FRAMEWORKS 


Before going into the specific sentencing frameworks, one must always consider the rule set out in the case of Dinesh Singh Bhatia s/o Amarjeet Singh v PP (“Dinesh Singh Bhatia”) where the High Court explicitly stated that sentencing frameworks help to achieve a certain degree of “consistency and rationality in our sentencing practices.” However, the Court warned that such sentencing practices “ought not, however, to be applied rigidly or religiously” as “[n]o two cases can or will ever be completely identical or symmetrical.”

Thus, one should always note that no sentencing framework is ever to be applied rigidly. An accused person may be sentenced to a term of imprisonment that is far higher or lower than the prescribed band/tier (as will be set out below). This is due to the existence of several aggravating or mitigating factors that may be in existence, such as, possibly, where the profit that a drug offender may obtain from his activities is particularly lucrative or where there is an early plea of guilt by the accused. 


Thus, one should always remember that the sentencing frameworks set out by the Courts are not set in stone.


THE DETERMINATION OF FRAMEWORKS


The following section will briefly cover some of the sentencing frameworks that have been with regard to the offence of trafficking. Note that this also includes instances of possession with the purposes of trafficking. 


As a preliminary point, several things must always be considered when it comes to the sentencing of a trafficking charge. First, the starting point would naturally be the quantity of drugs that was involved in the trafficking charge. As explained in the seminal case of
Vasentha d/o Joseph v PP (“Vasentha”), the quantity of drugs, as measured in terms of its net weight, that has been trafficked would have a direct correlation with the degree of harm to society. However, other factors must also be considered such as the culpability of the offender and the presence of aggravating or mitigating factors.

This was also supported by the Court of Appeal in Suventher Shanmugam v PP where the Court emphasised that the sentence passed for a crime should be proportional to the gravity of the offence. For offences concerning the trafficking and importation of drugs, the gravity of the offence is measured by the quantity of drugs involved. Second, when determining what ought to be the appropriate indicative starting point of an offence, the Court in Vasentha took into account three considerations.

First, the maximum sentence is usually reserved for the “worse type of cases falling within the prohibition” and the courts would impose a sentence close to or fixed at the statutory maximum only if the offender’s conduct is “among the worst conceivable for that offence, citing the cases of Angliss Singapore Pte Ltd v PP and Sim Gek Yong v PP. The sentence must correspond to the seriousness of the offence and that requires an examination of not only the harm but also the culpability of the offender and other relevant circumstances. The starting points should thus leave room for the sentencing judge to adjust the sentence upwards or downwards where required.

Secondly, the cases ought to fully utilise the full spectrum of possible sentences, and thus, the indicative starting points ought to span a range of possible sentences that stop short of the statutory maximum sentence. For the present purposes, this would mean the sentences set out in the Second Schedule of the MDA. Lastly, due to the importance of the degree of harm as a sentencing consideration, the starting points should be broadly proportional to the quantity of the diamorphine. In other words, the greater the quantity, the higher the sentence.



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TRAFFICKING OF DIAMORPHINE 


The first offence is that of trafficking of diamorphine. If an offender is carrying between 10 and 15 grammes of diamorphine, the statutory sentencing range of a minimum of 20 years imprisonment and a maximum of 30 years imprisonment, or life, along with 15 strokes of the cane, would be applicable to him.


What would then be the sentencing range if the offender is in possession of less than 10 grammes instead? This is explained in the above mentioned case of Vasentha, where the High Court set out the indicative starting points for first-time offenders who are trafficking in diamorphine, which has been banded according to the quantity:


The Court further explained that these are just indicative starting points, based on the quantity of the diamorphine. The second step of the determination would involve calculating and adjusting the amounts, where appropriate, to reflect the offender’s culpability along with the presence of any relevant aggravating or mitigating factors. Where no adjustment is necessary, the indicative starting point may then be the appropriate sentence to be imposed.

For cases where the offender is instead in possession of diamorphine that is greater than 9.99g, guidance can be obtained from the case of PP v Tan Lye Heng (“Tan Lye Heng”) where the Court set out the following indicative starting points for the custodial sentence for trafficking between 10g to 15g of diamorphine:



The offender would also be sentenced to the mandatory 15 strokes of the cane, as per the Second Schedule of the MDA.

The above concerns first-time traffickers of diamorphine. The exact same starting points cannot automatically apply for repeat offenders of trafficking, as explained in the case of PP v Lai Teck Guan (“Lai Teck Guan”). The Court explained that whether the principles of Vasentha are suitable for any given offence is dependent on whether the sentence hinged largely on a single metric, albeit later adjusted for other factors, or whether the gravity of the offence was or might have been affected by several metrics, each potentially of importance.

In cases of repeat offenders, Vasentha is not suitable as there were two important metrics that would feature in the sentencing analysis; the quantity of drugs and the circumstances in which the repeat offence came about. It is also difficult to derive a principled uplift from Vasentha, for repeat offenders, as the sentencing ranges for first-time offenders and repeat offenders do not mirror each other.

However, Vasentha is still useful and applicable when sentencing repeat offenders in the following way:

The sentencing court would first derive the starting point for the sentence based on the quantity of drugs for first-time offenders using Vasentha.

However, Vasentha is still useful and applicable when sentencing repeat offenders in the following way: 

  1. The sentencing court would first derive the starting point for the sentence based on the quantity of drugs for first-time offenders using Vasentha
  2. The Court would then apply an indicative uplift on account of the fact that this is a repeat offence and derive an indicative starting point on this basis, having due regard to the circumstances of the repeat offence. 
  3. Finally, the court would adjust that indicative starting point based on the offender’s culpability and the aggravating or mitigating factors, which have not been taken into account in the analysis up to this point.

With the above in mind, the Court then set out the following indicative uplifts, after taking into account the starting points set out in Vasentha and Tan Lye Heng above:




However, the abovementioned starting points were revised by the High Court in
Soh Qiu Xia Katty v PP (“Katty Soh”):





The caning sentences was also revised, as follows:




At this juncture, it is pertinent to note that all 3 of the decisions in
Vasentha, Lai Teck Guan and Katty Soh were decided at the High Court level. As such, none of the cases overrule one another. The revisions made in Katty Soh from the decision made in Lai Teck Guan were referred to by the High Court in Mohd Akebal s/o Ghulam Jilani v PP where the Court made the following observations:

  1. First, guidelines are a means to an end and the relevant end is the derivation of sentences that are just and are broadly consistent in cases that are broadly similar.
  2. Second, sentencing guidelines are not meant to yield a mathematically perfect graph that identifies a precise point for the sentencing court to arrive at in each case. Rather, they are meant to guide the court towards the appropriate sentence in each case using a methodology that is broadly consistent.
  3. Third, sentencing guidelines are meant to be applied as a matter of common sense in the light of the foregoing observations.


The Court went on to say that the differences adopted in
Katty Soh and Lai Teck Guan would not actually yield any difference in practice in the outcome and that they involve matters of detail that did not invite further comment. This view was also followed by the High Court in the case of PP v Poopathi Chinaiyah s/o Paliandi.

In other words, the aforementioned cases are still good law.

For completeness’ sake, if the offender is in possession of an amount of diamorphine greater than 15 grammes, they are liable to the death penalty.




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TRAFFICKING OF CANNABIS 


The next offence is that of trafficking of cannabis. Unlike diamorphine, the Courts have been relatively consistent with regard to a sentencing framework for cannabis. If an offender is in possession of 330 grammes to 500 grammes of cannabis, they are liable to a sentencing range of a minimum 20 years’ imprisonment to a maximum of either 30 years or life imprisonment. The first relevant sentencing framework would concern the aforementioned range of 330 grammes to 500 grammes.


In that regard, the seminal case is the case of
Suventher, where the Court referred to the case of Vasentha and recognised that it had been applied to other drugs apart from diamorphine. Whilst the Court recognised that the sentencing range in Vasentha cannot be applied wholesale, as they concern different factors and different drugs, the approach in Vasentha was still recognised as a useful guide to derive a sentencing range for cannabis. The following sentencing guidelines were then established, and were expressly held to be applicable to both the unauthorised import or trafficking of cannabis:



In addition, as per the Second Schedule, offenders who have trafficked more than 330g of cannabis are liable to the mandatory sentence of 15 strokes of the caning. 


For amounts under 330g, it may be useful to refer to the case of
PP v Sivasangaran s/o Sivaperumal (“Sivasangaran”) which was considered in Suventher and held in the 2020 District Court case of PP v Ng Gim Hui Amy (“Amy Ng”) to be consistent with one another. At this juncture, it is pertinent to note that the aforementioned case of Amy Ng was decided at the District Court level. Nevertheless, at the time of writing, it is still judicially recognised that the principles in Sivasangaran is consistent with those in Suventher.

In Sivasangaran, the Court had accepted the Prosecution’s sentencing framework, which was based on the indicative starting points set out in Vasentha for diamorphine, and which extrapolated similar starting points for use in trafficking in cannabis, as follows:




For the sake of completeness, if an individual is in possession of more than 500 grammes of cannabis, they are liable to be sentenced to death.
 



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TRAFFICKING OF METHAMPHETAMINE 


The last offence is that of the trafficking of methamphetamine. If an offender is in possession of between 167 grammes to 250 grammes of the substance, they are liable to a sentencing range of a minimum sentence of 20 years’ imprisonment to a maximum term of 30 years’ imprisonment or life, alongside a mandatory punishment of 15 strokes of the cane. 


In establishing sentencing frameworks for the trafficking of methamphetamine, the Courts have extrapolated the rules of other cases, in particular
Vasentha and Suventher and applied them to cases of methamphetamine. 


In
Loo Pei Xiang Alan v PP, the Court relied on the principles established in Vasentha and derived a “conversion scale” or rather, an “exchange rate” between diamorphine and methamphetamine. In doing so, the Court explained that the Second Schedule of the MDA prescribes the exact same minimum and maximum punishments for trafficking between 10g and 15g of diamorphine and trafficking between 167g and 250g of methamphetamine. Thus, this means that, all other things being equal, an offender who traffics between 10g and 15g of diamorphine is to be considered as culpable as a person who traffics between 167g and 250g of diamorphine. Thus, the culpability of an offender who traffics one gram of diamorphine is equivalent in culpability to an identically-situated offender who traffics 16.7g of methamphetamine. In that case, the Court applied the aforementioned conversion scale and held that trafficking 11.64g of methamphetamine is an act of equivalent culpability to trafficking 0.70g of diamorphine. Upon application to the framework in Vasentha, as set out above, that quantity of diamorphine would then fall within the lower end of the lowest band of sentences, thereby encompassing quantities under 3g. Had the offender in this case been a first-time offender, the indicative starting point for trafficking 11.64g of methamphetamine would instead be five to six years’ imprisonment and five to six strokes of the cane.


On the other hand, in Adri Anton Kalangie v PP (“Adri”), the Court had extrapolated a sentencing framework for the trafficking or importation of 167g to 250g of methamphetamine from the Suventher framework and set out the following indicative starting sentences:




In holding as such, the Court in
Adri referred to the case of Pham Duyen Quyen v PP wherein the Court of Appeal held that the sentencing ranges for cannabis, as set out in Suventher, could also apply to offences involving other drugs where the range of prescribed punishment is the same. As the prescribed punishment for methamphetamine is the same as cannabis, the sentencing ranges could be extrapolated. 


For the sake of completeness once again, it bears reminding that if an individual is in possession of more than 250g of methamphetamine, they are liable to the death penalty. 


CONCLUDING THOUGHTS 


The Courts have made sentencing frameworks for a variety of offences, and not just the aforementioned drug offences. These frameworks are very helpful in that they allow all parties to know what the relevant starting points for the relevant offences would be. This in turn allows for greater consistency in judicial decisions which eventually allows for easier understanding of the laws surrounding drug offences in Singapore. 


Though the sentencing frameworks are helpful, one should also always note the decision in
Dinesh Singh Bhatia where the Court expressly stated that sentencing frameworks are never to be followed rigidly and there must always be some degree of flexibility. 


One should also note how the above does not take into consideration the second step of the determination of a sentence for an offender, which is the adjustment of the sentence with regard to the culpability of the offender and the presence of any aggravating or mitigating factors of the accused. Such factors differ between offenders and between cases and it is impossible to properly state how high or how low a sentence will be adjusted in light of those factors. There is thus no rule that the Court must stick within a particular band of punishment. It of course goes without saying that any punishment imposed cannot go below the relevant statutory minimums. 


In conclusion, the establishment of sentencing frameworks have been particularly helpful in the hearing of drug cases, though they are not determinative. It is entirely possible for further sentencing frameworks to be developed for other drugs or illicit substances, such as for synthetic substances.

AUTHORS’ BIOGRAPHY


Mohamed Sarhan is a Year 3 Law Student in NUS Law and is one of the Project Managers of “Drugs & Forensics”. He is in charge of facilitating the activities within the project and hopes to evolve the project to a greater stage. Though still a student, Sarhan has assisted in a variety of criminal law cases and wants to use his knowledge to educate others about drug laws in Singapore. He hopes that his efforts in the project will enlighten others about the law’s position on drugs and the plight of drug offenders.










Muhammad Khairul Fikri is a Year 3 undergraduate from the Faculty of Arts and Social Sciences. Khai is one of the Project Managers of “Drugs & Forensics”. He is pursuing a Major in Geography and two Minors; Forensic Science and Geographical Information Systems. He is interested in the applications of technology, particularly geospatial technologies, in forensic science and crime scene investigations.

 

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CJC-F, CJC-F Announcements, CJC-F Understanding Forensics, CLD Criminal Law Basics

INTRODUCTION

News reports of persons being arrested for a variety of drug offences are still common despite Singapore’s strict drug laws. Such offences include possession, consumption and trafficking of controlled drugs and substances. Sometimes, the sentences imposed by the Courts are also provided in the news report if said persons were convicted of the offences. So, you may wonder, why do some accused persons receive vastly different punishments from one another? For example, why would an accused person be sentenced to death if he was in possession of 20g of heroin but he would not if it was 20g of cannabis instead?

The reason for this is lies in the rules and limits found in the Misuse of Drugs Act (“MDA”). The MDA sets out the different drug offences that exist in Singapore and the sentence that should be imposed in accordance with the type of drug the accused person possessed.  

This article aims to introduce the offences in the MDA and the relevant sentence that an individual may receive should they be found with an illicit substance. 

Note that this article is written with reference to the newest version of the Misuse of Drugs Act, which includes the amendments made to it by virtue of the Misuse of Drugs (Amendment) Act 2019. 


SCOPE OF THE ARTICLE 

The following four basic offences will be addressed: 

  1. Possession of a Controlled Drug 

  2. Consumption of a Controlled Drug

  3. Trafficking of a Controlled Drug 

  4. Importation and Exportation of a Controlled Drug 

There are other offences in the MDA, such as the cultivation of cannabis or the abetment of any of the offences, but those offences will not be addressed in this article.  


DIFFERENT CLASSES OF DRUGS

Before addressing the different drug offences, it is worth reiterating that there are countless different drugs in the world. For the purposes of conviction and sentencing, the MDA has divided the different types of drugs into Class A, Class B and Class C drugs. Different classes of drugs are subject to different possible sentences. For example, the table below illustrates how the punishment varies for trafficking different classes of drugs.


Given how vastly different the possible sentence may be according to the type of drug, the identification of the drug an accused person is found in possession of becomes extremely important. The different laboratory techniques used to identify different drugs will be discussed in subsequent articles. 


POSSESSION



Source: https://www.thejournal.ie/personal-drug-possession-poll-4753702-Aug2019/

1. Offence

The first offence is the of possession of a controlled drug or substance, as set out in Section 8(a) of the MDA and states as follows: 

Except as authorised by this Act, it shall be an offence for a person to have in his possession a controlled drug…”

2. Sentence

The sentence imposed on the offender is dependent on the type of drug found in the offender’s possession and the amount of said drug. Generally, if this was the offender’s second or subsequent offence, he may be sentenced to a minimum term of 2 years imprisonment, whereas the maximum term of imprisonment would be a term of 10 years’ imprisonment or a fine of S$20,000.00 or both.

At this juncture, it is prudent to note that the sentence imposed for cases of possession is usually dependent on the weight of the drug that was in the offender’s possession. This is addressed further below in the trafficking section. 

3. Presumptions 

The rules of possession seem quite simple as first glance as the individual only needs to be in possession of it. However, one also needs to look at the presumptions that exist in the MDA. These presumptions either (1) attribute possession of the drug to the individual, even though the individual may not be in physical possession of the drug itself (such as the drug being in his pocket), or (2) result in the offence becoming one of trafficking. 

The presumption concerning trafficking will be addressed below in the relevant section. 

The presumptions which would attribute possession to an individual are summarised as follows:



As shown, an individual does not have to actually be holding onto the drugs itself to be deemed to be in possession of it. It is sufficient if the drugs were in the car of the person or if they were in a bag which he had thrown away. This may seem, at first glance, to be rather harsh. However, it should be noted that this is only a presumption that the drugs are in their possession. This means that if the individual can show that they did not have knowledge of the existence of the drugs, the presumption is rebutted and they will  not be guilty of an offence of possession. 


CONSUMPTION



Source: https://encrypted-tbn0.gstatic.com/images?q=tbn:ANd9GcRjWo6zWy254IDvowSFzpOD0CH_rfHhn4UmBw&usqp=CAU

1. Offence

The next offence is the consumption of a controlled drug as set out in Section 8(b) of the MDA and reproduced as follows: 

Except as authorised by this Act, it shall be an offence for a person to smoke, administer to himself or otherwise consume a controlled drug, other than a specified drug; or a specified drug”.

Put simply, it is an offence for an individual to consume a controlled drug or specified drug. This would include drugs such as cannabis or heroin. 

Another important thing to note is that this same section, and ultimately the same rules, apply even if an individual had consumed a drug overseas. Section 8A of the MDA section sets out how a Singapore citizen could still be charged with an offence, even though he committed the offence overseas. Note that this still applies even though it may be legal to consume the drug overseas. For example, it is legal to consume cannabis in some states in the United States. That act still does not exempt you from being convicted of a consumption charge here despite having consumed said cannabis in a country where it is legal. 

2. Presumptions 

Just like for possession, the offence of consumption is also subject to certain presumptions:


The above presumptions can be rebutted with proof of the contrary. For example, some legal medicines, when consumed, may result in a reaction in the body similar to drugs like methamphetamine. This is why you are usually required to declare whether you are on any medication before any urine tests – in case there is a false positive.


3. Sentence 

The starting point for consideration of the sentence to be imposed for consumption cases is imprisonment of a minimum of one year to a maximum of 10 years, set out in Section 33(3A) of the MDA, reproduced as follows: 

Any person convicted of an offence under section 8(b), 31(2) or 31A(2) that is committed on or after the date of commencement of section 16 of the Misuse of Drugs (Amendment) Act 2019 shall on conviction be punished with imprisonment for a term of not less than one year but not more than 10 years and shall also be liable to a fine not exceeding $20,000, unless the person is punished under subsection (4), (4AA) or (4AB) or section 33(A) (as the case may be) for that same offence.


As evinced from the aforementioned section, the position of sentencing is dependent on whether the person is punished under other subsections of Section 33. This includes factors such as prior convictions of similar offence, the failure to provide a specimen of urine for a urine test and previous admission in a drug rehabilitation institution. 

Hence, it can be said that the sentence to be imposed on a drug offender is dependent on the prior record of the said offender.


TRAFFICKING



Source: https://www.footprintsbeachside.com/blog/drug-trafficking-addiction-in-florida/

1. Offence

The third offence is that of trafficking of controlled drugs, which is set out in Section 5 of the MDA and reproduced as follows: 

(1) Except as authorised by this act, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not that other person is in Singapore – 

(a) To traffic in a controlled drug; 

(b) To offer to traffic in a controlled drug; or 

(c) To do or offer to do any act preparatory to or for the purpose of trafficking in a controlled drug. 


(2) For the purposes of this Act, a person commits the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking. 

The term ‘traffic’ is also defined in Section 2 of the MDA to mean: 

(a) To sell, give, administer, transport, send, deliver or distribute; or 

(b) To offer to do anything mentioned in paragraph (a)

Otherwise than under the authority of this act, and “trafficking” has a corresponding meaning. 

From the aforementioned definition, the scope as to what constitutes ‘trafficking’ is rather large. This essentially means that if Person A carries a packet of heroin from his house to Person B’s house, it is technically trafficking as he is transporting or delivering said packet to Person B’s house. 

Apart from fulfilling one of the acts of trafficking set out in Section 2 above, an accused person may also be charged with trafficking if they are in possession of an amount of that particular drug that is above a particular threshold. This is as set out in Section 17 of the MDA which specifies the minimum statutory thresholds that, if crossed, would mean that a person is found to be in possession of the drugs for the purposes of trafficking. If the amounts are crossed, it is presumed that the individual is in possession of the drugs for the purposes of trafficking. 

For the avoidance of doubt, if the individual is in possession of an amount of the drug which is less than the amount set out in Section 17, then he would only be considered to be in possession of said drug, unless he is actually trafficking it, as per the Section 2 definition.  

2. Sentence 

For sentencing in trafficking cases, the weight of the drug is paramount. Once the weight of the drug is found to be above a certain weight threshold, the individual may be sentenced to death. The table below sets out the different statutory limits that the MDA has placed on certain drugs. These drugs are those specifically flagged out in the MDA to have their own specific limit, which if crossed, converts the offence of possession to that of trafficking. 

If the amount being trafficked is within a particular range, as set out below, the accused person would be subject to a sentence in the sentencing range of the statutory minimum of 20 years’ imprisonment, and 15 strokes of the cane, and the statutory maximum of 30 years or life imprisonment, along with 15 strokes of the cane. 



IMPORTATION AND EXPORTATION OF A CONTROLLED DRUG

Source: https://www.europol.europa.eu/newsroom/news/international-drug-trafficking-network-disrupted

1. Offence 

The last offence to be addressed presently is that of importation and exportation of controlled drugs. This is as set out in Section 7 MDA which states:
 

Except as authorised by this Act, it shall be an offence for a person to import into or export from Singapore a controlled drug.

The offence is made out if an individual brings drugs in or out of the country. For the avoidance of doubt, the individual must have had knowledge of the drugs.

2. Sentence

The sentence is dependent on the weight of the drugs that were being imported or exported. Offences of importation and exportation are generally deemed to be more serious than that of trafficking, and this is reflected in the Second Schedule of the MDA which provides that the general maximum imprisonment term is that of 30 years. Note that the death penalty may also be imposed if the amount of drugs involved in the charge is higher than the threshold set out in the MDA. 

The general sentencing ranges for offences of importation or exportation differs depending on the class of drug being imported or exported, and is as follows:

The vast difference in the general sentencing ranges between trafficking and importation shows how such offences of importation and exportation are seen as more serious offences than that of trafficking. 

The table below summarises the basic sentences that will be imposed for the offences of importation or exportation of certain drugs:



CONCLUSION 

Apart from the above mentioned offences of possession, consumption, trafficking and importation/exportation of drugs, there are far more offences in the MDA which are beyond the scope of this article. This article seeks to help readers understand the basic drug laws that exist in Singapore.



AUTHORS’ BIOGRAPHY

Mohamed Sarhan is a Year 3 Law Student in NUS Law and is one of the Project Managers of “Drugs & Forensics”. He is in charge of facilitating the activities within the project and hopes to evolve the project to a greater stage. Though still a student, Sarhan has assisted in a variety of criminal law cases and wants to use his knowledge to educate others about drug laws in Singapore. He hopes that his efforts in the project will enlighten others about the law’s position on drugs and the plight of drug offenders.










Muhammad Khairul Fikri is a Year 3 undergraduate from the Faculty of Arts and Social Sciences. Khai is one of the Project Managers of “Drugs & Forensics”. He is pursuing a Major in Geography and two Minors; Forensic Science and Geographical Information Systems. He is interested in the applications of technology, particularly geospatial technologies, in forensic science and crime scene investigations.

 

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