LAW321: Analyse the facts and identify the relevant constitutional issues, interpret the relevant principle(s) of constitutional law: Constitutional and Administrative Law Assignment, SUSS, Singapore

Question 1

This assignment features a hypothetical scenario. You are to read the scenario and “advise” the client. This means you must analyse the facts and identify the relevant constitutional issues, interpret the relevant principle(s) of constitutional law relevant to the issues identified, apply the relevant principle(s) to come to a conclusion on the issues, and demonstrate an understanding of the relevant constitutional concepts, values and/or principles by formulating an opinion, and indicating the relevant concepts, values and/or principles and providing a solution.

In doing so, you must discuss the arguments, make reasoned choices between alternatives, examine ideas with the correct terminology, and employ information technology as an aid in the preparation of the advice.

You are reminded that the word limit for this assignment is 1000 words (including footnotes, internal headers and any words). The only exclusion to this rule is the student’s name, the student’s ID number and the assignment title.

Facts

[NB: The statute and the council created by that statute in the hypothetical below are fictitious. The law firm is also fictional, but as of July 2021, the Legal Clerkship Programme is real (as LAW499). The experience described in the TMAs however may not be reflective of your time in the LCP.

Notwithstanding the nature of the question, please submit your assignment as an opinion piece, i.e. do not address it as a letter to the client or the partner. Please simply submit your analysis of the law, and your opinion of the facts, and refer to all parties in the third person.]

Having worked through almost four years of SUSS Law, you find yourself at the cusp of graduation, with only the Legal Clerkship Programme left to complete before you graduate. As part of your General Law module, you are attached to the law firm Brady & Manning LLP.

After settling into the office on your first day, you are invited to join your supervising partner Todd “Big Ben” Shang in his office, where he briefs you on a file that has just come to him. His client is David “Pai Ka” Lee, a professional water polo player who is known as one of the best goal scorers in the league, but whose activities out of the pool attract constant attention and controversy.

During a match in January 2020 (before the pandemic stopped all organized sports activity), David was found to have deflated one of the match balls so that he could grip it better. He was also found to have swapped the opposing goalkeeper’s Speedos to a smaller size so that he would be uncomfortable throughout the match.

Accordingly, he was charged by the National Sports Fairness Council (“the Council”) for two counts of conduct unbefitting of a sportsman under section 38 of the Sports Fairness Act (“the Act”). The section reads,

“38 An individual holding a licence to play sports under this Act who is found to have committed conduct unbefitting of a sportsman shall on conviction be punished with –

(i) Suspension of a licence granted under this Act for no less than six months per charge;
(ii) A fine of no less than $20,000 per charge…”

[For the purposes of this TMA, conduct unbefitting of a sportsman is defined clearly under the Schedule, and there is no issue that the conduct here falls within that Schedule.]

David was intending to plead guilty to the charges before the Sports Tribunal. However, during his consultation with Todd on how to proceed, Todd alerted him that the potential punishments he was facing had been scaled upwards due to section 45B of the Act. That section reads as follows:

“45B (1) Where an individual has not less than two previous convictions for an offence under Parts III, IV and V of this Act, and is subsequently convicted of an offence under section 38 for conduct unbefitting of a sportsman under this Act, he shall on conviction be punished with –

(i) Suspension of a licence granted under this Act for no less than three years from the date of conviction;
(ii) A fine of no less than S$50,000 per charge…”

David had previously been convicted for one charge under Part III of the Act for refusing to hand over his cell phone for investigations by the Council, and for two charges under Part IV of the Act for illegally recording other teams’ practice sessions.

David is unhappy at the higher potential charges and has taken the view that section 45B is “distinctly unfair” to him and other athletes in the same situation by increasing their minimum punishment “just because they made some errors in their younger days”.

He has heard about the concept of “separation of powers”, and has suggested to Big Ben that there might be some merit in investigating whether the prescription of a minimum punishment by the statute contravenes “the key concept of separation of powers”.

David is also unhappy that his case will be decided by the Sports Tribunal (which is a tribunal established by section 5 of the Act) and not the Courts. He argues that “the Courts should be the only one to exercise any sentencing power and not some created body”, and that his girlfriend (a first-year law student from SUSS) has told him that “Article 93 of the Constitution should apply in this case” (though he’s unclear what that means exactly).

Big Ben has requested you to produce a 1000-word memorandum setting out the following:

(a) Does the statute’s prescription of punishment violate the doctrine of the separation of powers?

(b) Is David right in his conclusion that article 93 prevents a non-Court tribunal from passing sentences?