Page 1

Halsbury's Laws of Singapore - Administration and Constitutional Law/10 - Administrative and Constitutional Law/II. Constitutional Law/(4.) Fundamental Liberties/(3) Protection Against Retrospective Criminal Laws and Repeated Trials (3) PROTECTION AGAINST RETROSPECTIVE CRIMINAL LAWS AND REPEATED TRIALS [10.541] Retrospective criminal laws and punishment No person is to be punished for an act or omission which was not punishable by law when it was done or made, and no person is to suffer greater punishment for an offence than was prescribed by law at the time it was committed.1 The word 'law' in the article includes judicial pronouncements and judicial interpretation of statutory provisions creating criminal liability.2 The provision gives effect to a fundamental principle of the rule of law that a person may not be deprived of his life or personal liberty for an act which is not an offence at the time he commits it. It entrenches the basic principle of criminal jurisprudence reflected in the ancient Latin maxim nullum crimen sine lege, nulla poena sine lege, that 'conduct cannot be punished as criminal unless some rule of law has already declared conduct of that kind to be criminal and punishable as such'.3
1 Article 11(1). In Johari bin Kanadi and Another v PP [2008] 3 SLR 422; [2008] SGHC 62, the court addressed the constitutional question whether it would be against Art 11(1) to sentence Subutex consumers to enhanced punishment under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) s 33A as Subutex was legally consumable in Singapore at least since the year 2002 right up to 14 August 2006 when it was declared a controlled drug and listed as a Class A drug (as well as a specified drug since 1 October 2006). In the instant case, it was held, that if the appellants could not cope in spite of the very reasonable measures taken to ensure a smooth and fair change in the drugs law, that would be something personal and unique to them, rather than of public interest. Therefore no constitutional matter was raised under Art 11(1). 2 PP v Manogaran s/o R Ramu [1997] 1 SLR 22 at [66], CA. See [10.542]. 3 'The rationale underlying this principle is clear. It is essential in a free and democratic society that citizens are able, as far as possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards': see Professor L Tribe American Constitutional Law (2nd Ed, 1988) p 1033. This is especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the law': PP v Manogaran s/o R Ramu [1997] 1 SLR 22 at [62], CA, citing Reference re ss 193 and 195.1(1)(c) of the Criminal Code (1990) 56 CCC (3d) 65 at 86, Can SC, per Lamer J.

[10.542] Change of statutory interpretation affecting accused Where the final appellate court overrules the interpretation given to a statute creating criminal liability, with the result that the accused would be liable to be convicted of an offence under the new interpretation, the court is precluded by article 11(1) and the nullum principle1 from convicting the accused of the offence, as it would amount to applying a retrospective criminal law against him.2
1 See [10.541]. 2 PP v Manogaran s/o R Ramu [1997] 1 SLR 22, CA, where the court overruled, prospectively, the interpretation of the expression 'cannabis mixture' in the Misuse of Drugs Act (Cap 185, 1985 Ed) s 2 given by another panel of the court in an earlier case. As a consequence of the new interpretation, the accused would have been guilty of the offence of trafficking in a controlled drug, for which the death penalty was mandatory. The court, however, decided that the accused could not be convicted of the offence which when it was committed was not an offence under the previous interpretation. The court held that, having regard to art 11 and the nullum principle, the accused could not be convicted as that would operate to the prejudice of the accused. The new interpretation could only have prospective effect, and not retrospective effect. So long as the previous ruling remained law, there was no offence. In the words of Yong Pung How CJ at [74]: 'if a person organises his affairs in accordance with an existing judicial pronouncement about the state of the law, his actions should not be impugned

Page 2

retrospectively by a subsequent judicial pronouncement which changes the state of the law, without his having been afforded an opportunity to reorganise his affairs. This seeks to protect his reasonable and legitimate expectations that he did not act in contravention of the law. In addition, as in the case of new enacted legislation which creates criminal liability, proper notification (by way of publication) must be given prior to its commencement ... the nullum principle requires that citizens must be able, as far as possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid. These principles of legitimate expectation and notification are the foundations for art 11(1) and the nullum principle'. The court accordingly upheld the acquittal of the accused on the trafficking charge and directed that a new charge of being in possession of a controlled drug be framed and substituted for the trafficking charge.

[10.543] Re-enactment of criminal statute The repeal and simultaneous re-enactment of substantially the same statutory provisions is not an implied repeal of the original statute, but an affirmation and continuance of the statute in uninterrupted operation. As such, a person who had been convicted many times under the repealed statute, if convicted under the re-enacted statute, is not a first offender for the purpose of assessing the punishment for the offence.1
1 PP v Tan Teck Hin [1992] 1 SLR 841, CCA where the court held that for the purposes of sentencing an accused convicted under the new Road Traffic Act (Cap 276, 1985 Ed) s 67(1) the court could take into account the accused's previous conviction under the repealed section. The court stated (at 849) that such an approach would not offend the common law rule against the retrospective operation of statutes and against art 11(1) as there was no question of the person being punished for an act or omission which was not punishable by law when it was done because the offence with which he was charged was without doubt an offence at the time it was committed and the punishment as for a second offence was nothing other than what was prescribed by the statute. Having carefully considered Tan Teck Hin supra, the Court in Ho Sheng Yu Garreth v PP [2012] SGHC 19 I could not accept argument that the offence of unlicensed moneylending under the Moneylenders Act 1985 (Cap 188, 1995 Rev Ed) s 8(1)(b) was different from that of the Moneylenders Act 2010 (Cap 188, 2010 Rev Ed) under s 14(1) because the punishment for a first offender under s 14(1)(b)(i) of the 2010 Act was heftier than the corresponding punishment under s 8(1)(i) of the 1985 Act. The central issue was whether the appellant was liable for enhanced punishment under the Moneylenders Act 2010 s 14(1)(b)(ii) owing to his prior convictions under the Moneylenders Act 1985 s 8(1)(b). The Moneylenders Act 1985 was later repealed and re-enacted as the Moneylenders Act 2010. The appellant's submitted that he was a first offender under the Moneylenders Act 2010 and should not be liable for enhanced punishment under s 14(1)(b)(ii) of the 2010 Act on account of his previous convictions under s 8(1)(b) of the 1985 Act. There was no break in the continuum between the legislative regime under the 1985 Act and that of the amended 2010 Act). As such, an offence under the Moneylenders Act 1985 could be taken into account as a prior offence for the purposes of Moneylenders Act 2010.

[10.544] Retrospective increase in punishment Article 11(1) entrenches one of the fundamental principles of the rule of law that a person should not suffer a greater punishment for an offence than is prescribed by law at the time it was committed. A law which merely increases the sentencing powers of the court having to try a particular offence and which makes no changes to the punishment for the offence or any defence on which an accused is entitled to rely, although made retrospective, does not infringe the article.1 However, the constitutional protection against retrospective punishment applies where the prescribed punishment for an offence is altered by legislative amendment to the detriment of an accused after his trial had begun for an offence committed before the amendment was enacted.2
1 PP v Peter Tham Wing Pai [1988] SLR 421, [1988] 2 MLJ 341; Wee Harry Lee v PP [1980-1981] SLR 301, [1980] 2 MLJ 56. 2 PP v Mohamed Ismail [1984] 2 MLJ 219, HC (Malaysia), where the accused was found guilty of drug trafficking on the same day when the related punishment provision was amended to provide for the mandatory death sentence upon conviction of the offence in place of the former provision allowing the court the option to sentence the convicted person to death or imprisonment for life. The court held that the material date for determining sentence for the offence was the date of conviction and not the date of the offence. Applied retrospectively, the statutory amendment was clearly a law which was inconsistent with the Federal Constitution art 7(1) (in pari materia to art 11(1)). See also PP v Hun Peng Khai [1984] 2 MLJ 318, HC (Malaysia). For Commonwealth cases, see: (1) R v Pora [2001] 5 LRC 530, CA (New Zealand) (statutory power conferred on a court to impose a sentence of

Page 3

a minimum period of imprisonment which did not extend to offences committed before that power was first conferred did not violate the fundamental right to freedom from retrospective penalty); (2) Veldman v Director of Public Prosecutions [2006] 4 LRC 420, Constitutional Court (South Africa) (In so far as the retrospective application of legislation was concerned, the distinction between substance and procedure was illusory and the retrospective application during the trial which exposed an accused person to a sentence more severe than that which was competent when he tendered his plea rendered the sentence imposed a violation of the general presumption against the retrospective application of legislation which was basic to the notions of fairness and justice and integral to the rule of law).

[10.545] Retrospective change in criminal procedure The constitutional protection in article 11(1) does not affect a legislative amendment in criminal procedure, including that relating to modes of trial, introduced after the commission of an offence which is subsequently tried under the new procedure or mode of trial.1 Likewise, article 11(1) does not prevent an offence being made extraditable after it is committed2 or prohibit retrospective legislation on extradition of a fugitive criminal for trial for an offence that was a criminal offence on the earlier date as such legislation is not directed to the penal nature of the offence but rather to the procedure for extradition.3 If Parliament retrospectively affects vested rights or pending proceedings, then it would be the duty of an appellate court to apply the law prevailing on the date of appeal before it. Subject to the constitutional limitation of article 11, to wit protection against retrospective criminal laws and repeated trials, Parliament would be within the ambit of its competence if it deems fit to legislate retrospectively.4
1 Haw Tua Tau v PP [1978-1979] SLR 206, [1980] 1 MLJ 2, CCA (right of an accused person at his trial to make an unsworn statement from the dock taken away by legislative amendment); affd [1980-1981] SLR 73, [1981] 2 MLJ 49, PC (on appeal from Singapore). See Lim Sing Hiaw v PP [1965] 1 MLJ 85, FC (Malaysia) (retrospective regulation which allowed trial by judge alone instead of by judge and jury being procedural did not contravene the Federal Constitution art 7(1) (in pari materia to art 11(1)). However, see Savrimuthu v PP [1987] 2 MLJ 173, SC (Malaysia) (statutory provision empowering the Public Prosecutor to transmit pending cases in the lower courts to the High Court did not violate art 7(1) but could be invoked only in cases where the trials in the lower courts had not yet begun). 2 Fernandez v A-G, Malaysia [1970] 1 MLJ 262, FC (Malaysia), where the Commonwealth Fugitive Criminals Act 1967 was held to be procedural and merely provided for machinery whereby persons accused of having committed offences under the laws of Singapore might be arrested in Malaysia and handed over to the Singapore authorities. As at the time of the alleged offences, the Prevention of Corruption Ordinance 1960 (No 39 of 1960) was already in existence in Singapore, there was no question of the Commonwealth Fugitive Criminals (Amendment) Act 1969 making the alleged acts crimes which were not crimes when they were alleged to be committed in 1966 and 1968 and thus it did not contravene the Federal Constitution art 7(1). 3 Chua Han Mow v Superintendent of Pudu Prison [1979] 2 MLJ 70, HC (Malaysia), where the Extradition Ordinance 1958 (Malaysia) s 3A (introduced by the Fugitive Criminals (Special) Extradition Act 1977) which gave the Minister an ad hoc power to deal with cases of extradition whether or not there was a treaty for the mutual surrender of fugitive criminals was held not invalid even though it had retrospective effect as it dealt not with the penal nature of the offences but the procedure for extradition. 4 Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 at 190, FC (Malaysia), per Raja Azlan Shah FJ.

[10.546] Repeated trials Article 11(2) enshrines the common law principle that a person should not be put in double jeopardy for the same offence. It protects against repeated trials and provides that a person who has been convicted or acquitted of an offence must not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was convicted or acquitted.

Page 4

An acquittal for the purpose of article 11(2) must be an acquittal which is final1 or which is not appealed against where there is a right of appeal.2 An acquittal resulting from a submission of no case to answer at the end of the case for the prosecution which on appeal or in a criminal reference is reversed by the appellate court on the ground that there was a case to answer is not such an acquittal, and the case may be remitted to the trial court to continue with the trial.3 A person must have been either acquitted or convicted before he can be found in double jeopardy. Trial in one court on certain charges where other charges are also pending in another court is not double jeopardy and the possibility of a subsequent trial does not give ground for objecting to the first trial.4 A conviction on one offence does not provide the accused with a plea of autrefois convict on a subsequent prosecution for a different offence on the same facts if the accused could not have been charged with or convicted of that different offence in the court which first convicted him.5 It would be wrong to penalise someone again for his past misdeeds, particularly if he has already served his sentence for them. To do so would be tantamount to a violation of the constitutional safeguard eschewing double jeopardy. Accordingly, it would be inappropriate to mechanically enhance the sentence of an offender simply by virtue of the fact that he has a criminal record. One's criminal record is relevant to the extent that a sentencing judge may draw certain inferences about the accused's character, attitude and likelihood of rehabilitation.6
1 PP v Lee Chan Sang [1989] 1 MLJ 224 at 226, SC (Malaysia), which held that 'autrefois acquit' means 'formerly acquitted' and is a bar to criminal prosecution when the prisoner has already been tried for the same offence before a court of competent jurisdiction and has been acquitted. The plea of autrefois acquit can only succeed where the accused was in jeopardy in the first proceeding, that is to say, where the merits of the prosecutor's case have been gone into so that the decision of the court was that the evidence was insufficient to support the prosecution; Gunalan s/o Govindarajoo v Public Prosecutor [2000] 3 SLR 430, [2000] SGHC 143, HC, which held that the claim based on the common law principle of autrefois convict as enshrined in art 11(2) failed because the breach proceedings under s 44(2)(a) of the Children & Young Persons Act did not concern facts or offences that were even substantially similar to that of the criminal proceedings involving the offence of carnal connection with a girl under 16 years, and did not involve the trial of a specific charge but the determination of the continued suitability of the petitioner at the home based on representations made by the manager of the home. The breach proceedings are not an adjudication on the legality of the juvenile's actions while at the home. They are for the juvenile court to transfer the juvenile to another approved school if the court is satisfied that this would be more suitable for the juvenile. The requirement to be satisfied under s 44(2)(a) is not proof of an offence, but merely that the juvenile is of so unruly a character that he cannot be detained at the original approved school. For Commonwealth cases, see: (1) Richards v R [1993] AC 217, [1992] 4 All ER 807, PC (on appeal from Jamaica), where it was held that having regard to the underlying rationale of autrefois convict, which was to prevent duplication of punishment, a plea of autrefois convict could not be sustained by anything less than evidence that the offence with which the defendant stood charged had already been the subject of complete adjudication against him by a court of competent jurisdiction comprising both the decision establishing guilt and also the final disposal of the case by the court passing sentence or making some other order such as an order of absolute discharge. Accordingly, a finding of guilt without proof of the court's final adjudication by sentence or other order was not sufficient to sustain a plea of autrefois convict; Spencer v Wellington District Court [2001] 3 LRC 34, HC (New Zealand) (fundamental right to protection against double punishment or 'autrefois convict' is concerned only with protection from punishment for the same offence for that person, and accordingly, the conviction and punishment of a company for a health and safety offence causing the death of an employee is no bar to the principal director and officer of the company who held all but one share from being charged and convicted of manslaughter following the death of the employee); R v Rodgers [2006] 5 LRC 1, Can SC (statutory provisions for a judge to authorise collection of DNA samples from convicted offenders solely for inclusion in a DNA data bank for use as an identification tool held as not violating the constitutional right not to be subjected to double jeopardy since the taking of DNA samples did not constitute a punishment which as a general rule would encompass not just being convicted of a particular criminal offence but also every potential consequence forming part of the arsenal of sanctions to which an accused might be liable in respect of a particular offence and the sanction was one imposed in furtherance of the purpose and principles of sentencing).

(2)

(3)

2 PP v Ooi Khai Chin [1979] 1 MLJ 112, FC (Malaysia), where it was held that art 11(2)) does not prohibit appeals against

Page 5

acquittals but on the contrary it impliedly allows a court to order the retrial of a person who had been acquitted. The court also clarified its own decision in PP v Tai Chai Geok [1978] 1 MLJ 166, FC (Malaysia). See also State v Boyce [2006] 3 LRC 611, PC (Trinidad and Tobago) (fundamental principle of fairness that a person who had been finally convicted or acquitted in proceedings which had run their course should not be liable to be tried again for the same offence was held as not infringed by a statutory provision allowing the prosecution to appeal against an acquittal). 3 PP v Tan Meng Khin [1995] 2 SLR 505, CA, where the magistrate acquitted and discharged all 25 accused without calling for their defence, on the basis that he was bound by a previous decision of the majority of the Court of Appeal in PP v Fo Son Ring [1994] 2 SLR 561 which had held that the charge as framed did not disclose an offence. The prosecution appealed to the High Court, where the appeal was also dismissed as the High Court held itself similarly bound but the prosecution was allowed to reserve four questions of law of public interest for the decision of the Court of Appeal under the Supreme Court of Judicature Act (Cap 322, 1985 Ed) s 60. The Court of Appeal overruled PP v Fo Son Hing (above) and held that with such an overruling, the basis for the accused's acquittal no longer existed and thereafter exercised its powers under the Supreme Court of Judicature Act s 60(4) by sending the case back to the subordinate courts and ordering that the accused's defence be called. For Malaysian cases see PP v Ooi Khai Chin [1979] 1 MLJ 112, FC (Malaysia) (Federal Constitution art 7(2) (in pari materia to art 11(2)) did not prohibit appeals against acquittal but impliedly allowed a court to order the retrial of a person who had been acquitted); Fan Yew Teng v PP [1975] 2 MLJ 235, FC (Malaysia) (quashing of a conviction and declaring the trial a nullity was no bar to a retrial even though no retrial had been ordered by the superior court quashing the conviction). Lee Hun Hoe CJ (Borneo), in delivering the judgment of the court in the latter case said (at 236): 'as the appellant's earlier trial was declared a nullity, no order made in such a trial would have any effect and he was never in jeopardy, his purported conviction at that trial was also a nullity; therefore he is not a person who has been convicted of an offence within the meaning of clause (2) of article 7 [ie art 11(2)]. In other words, as the trial was a nullity there was in fact no trial so that the trial court could neither convict or acquit'. 4 PP v Teh Cheng Poh [1978] 1 MLJ 68, HC (Malaysia). 5 Jamali bin Adnan v PP [1986] 1 MLJ 162, SC (Malaysia), where the appellant's conviction in the sessions court of robbery in which he had used a revolver was no bar to his subsequent prosecution in the High Court for being in control, without lawful authority, of the revolver. 6 Public Prosecutor v NF [2006] 4 SLR 849, [2006] SGHC 165.

[10.547] Discharge not amounting to acquittal The discharge of an accused person at the request of a deputy public prosecutor who presented no case to answer was not an acquittal for the purposes of a plea of autrefois acquit.1
1 See Yeap Hock Seng v Minister for Home Affairs, Malaysia [1975] 2 MLJ 279 at 285; Nadarajan v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia [1994] 2 MLJ 657 at 668.

[10.548] Preventive detention does not involve any trial Preventive detention under any constitutionally sanctioned law providing for such detention, for example, the Internal Security Act, does not involve any trial.1 Hence, the prohibition against repeated trials does not prevent a person acquitted of a criminal charge from being detained under any preventive detention law validated by article 9(6) or enacted under article 149 even though he had been acquitted of an offence for which he is subsequently detained. The subsequent detention does not involve a trial of the detainee and hence does not violate the constitutional provision.2 The legality of the detention has to be determined in accordance with the terms of the relevant legislation and not article 11. Administrative detention, under statutory power to detain without trial, is held not to be a punishment for an offence and is, therefore, no bar to trial as trial and acquittal are not a bar to administrative detention.3
1 See Teo Soh Lung v Minister for Home Affairs [1989] SLR 499, [1989] 2 MLJ 449. See also Tuang Pik King v Menteri Hal Ehwal Dalam Negeri, Malaysia [1989] 1 MLJ 301 (statutory provisions enacted with retrospective effect which did not create offences but merely immunised from judicial review certain defects in detention orders made under a preventive detention law did not contravene the Federal Constitution art 7(1) (in pari materia to art 11(1)) which prohibits retrospective penal legislation and is applicable only to criminal matters).

Page 6

2 See Lim Keng Chia v PP [1998] 1 SLR 686, in relation to a detention order made under the Misuse of Drugs Act (Cap 185, 1985 Ed). For Malaysian case law, see Yeap Hock Seng v Minister for Home Affairs, Malaysia [1975] 2 MLJ 279. Gunalan s/o Govindarajoo v PP [2000] 3 SLR 430. 3 PP v Musa [1970] 1 MLJ 101, HC (Malaysia). Support for this view can be found not only in the marginal note to art 11 but also in the presence of art 151, which sets out the constitution's express restrictions on preventive detention.

[10.549] Disciplinary hearing is not a trial Article 11(2) does not prevent a person previously acquitted from being subsequently subjected upon the same facts to disciplinary action by a domestic tribunal.1
1 Mohamed Yusoff bin Samadi v A-G [1972-1974] SLR 578, [1975] 1 MLJ 1, where a teacher acquitted of using criminal force on four girls in his class knowing it to be likely to outrage their modesty was subjected on the same facts to disciplinary proceedings by the Public Service Commission. See also Law Society of Singapore v Edmund Nathan [1998] 3 SLR 414 at [9] and [11], where it was held that the Legal Profession Act (Cap 161, 1994 Ed) s 94A which directs the Law Society to apply under s 98 for a show cause order in any case where an advocate and solicitor has been convicted of an offence involving fraud or dishonesty without further direction or directions is mandatory and purely procedural. It dispenses with the first two stages of the disciplinary process, namely, the inquiry committee stage and the disciplinary committee stage, and directs the Law Society to go straight to the third stage, the show cause stage, where an advocate and solicitor is convicted of an offence involving fraud or dishonesty. Section 94A does not in any way impinge on the availability of the principle of autrefois in disciplinary proceedings under the Act as its applicability in professional disciplinary proceedings was accepted in Wee Harry Lee v Law Society of Singapore [1984-1985] SLR 41, [1985] 1 MLJ 1. Gunalan s/o Govindarajoo v PP [2000] 3 SLR 430.