No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was omitted.
Quaere: What if law is passed to remove sentencing discretion of judges (ie making a particular punishment mandatory).
PP v Mohamed Ismail (1984) – What is the material date for determining sentencing for offences? Edgard Joseph J: judge retained discretion on sentencing since offence was committed before the discretion was removed.
PP v Hun Peng Kai (1984) – Sessions Courts’ jurisdiction and discretion to impose either death penalty or life imprisonment removed. Edgar Joseph J: Amendments were not retrospective. Once an accused is charged and case fixed for hearing, the court was vested right to trial & sentencing.
5 March 1990 – Tan’s previous conviction for drink driving
2 April 1990 – Section 67(1) of Road Traffic Act amended to increase punishment for first time & repeat offenders
9 June 1991 – Accused commits offence of drink driving under section 67(1) Road Traffic Act.
28 July 1991 – Accused convicted in DC
Harry Lee Wee v PP (1980). Amendment to section 17 of the Criminal Procedure Code – DC’s jurisdictional limit of max of $30,000 fine lifted. Choor Singh J: Punishment not affected by amendment; only DC’s powers to impose fines
A person who has been convicted or acquitted of an offence shall 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 acquitted or convicted.
Applies only to criminal offence. In common law, this is encapsulated in two principles: Autrefois convict & autrefois acquit
Criminal Procedure Code, section 239:
A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him …
But a person who has been acquitted or convicted of an offence may still be ‘tried for any distinct offence for which a separate charge might be made against him.’
Quaere: What amounts to ‘conviction’ or ‘acquittal’?
What if first trial is quashed as a nullity?
Fan Yew Teng v PP (1975).
Accused convicted for sedition. On appeal, his trial was quashed and he was released. Fan was then re-arrested and charged with the same offence. Lee Hun Hoe CJ (Borneo): No violation of Article 7(2) since he had not been convicted or acquitted of an offence.
Sua Soo Kim v PP (1975)
Appellant & another were jointly charged & tried in High Court. Sua was acquitted while the other was convicted. Convicted person appealed & his conviction was set aside, the trial being declared a nullity. Later, both of them were re-arrested and tried again. Held: No violation of Art 7(2).
Appellant was arrested and he led police to a place where 2 revolvers and ammunition were found.
Charged under Penal Code for 4 counts of robbery with a deadly weapon – 6 years’ imprisonment & 5 strokes of the cane.
Later charged with possession of 2 revolvers & 29 rounds of ammunition under Internal Security Act. Sentences to death
Supreme Court (Malaysia): ‘same offence’ was one in which ‘the ingredients are the same’. Comparing the two sets of charges, the ‘essential ingredients’ were not the same:
… armed robbery can be regarded as an aggravated form of theft causing fear of instant death or hurt on the intended victim voluntarily by means of a deadly weapon. On the other hand, the essential ingredients under the Internal Security Act 1960 are simply control of firearms and/or ammunition without lawful authority.
Accused charged with 5 counts of outraging the modesty of his students & acquitted.
Public Service Commission commenced disciplinary proceedings against him with a view to dismissal
Acquitted by PSC and he applied to High Court for declaration that Regulation 11 of the Public Service (Disciplinary Proceedings) Regulations 1970 was void and in violation of Article 11(2)
FA Chua J: The word ‘offence’ means ‘any act or omission punishable by law’. PSC charges against Yusoff were for ‘misconduct with outraging the modesty of certain of his girl pupils’. As such, he was not being tried for the ‘same offence’ since professional misconduct was not an offence under the law.
Quaere: Can a person who is subjected to a fresh detention order challenge the subsequent order as a violation of Article 11(2)?
PP v Musa (1970)
Musa detained under section 8(1)(b) of ISA and later served with restriction order.
Did the detention or restriction order amount to a ‘conviction’ of an offences that applied to Article 7(2) [Article 11(2)]?
Syed Othman J: ‘… the Minister’s decision to detain someone under the Internal Security Act was not a conviction for an offence or crime and the detention or restriction order is not a punishment for the purpose of Article 7 of the Constitution.
All persons are equal before the law and entitled to the equal protection of the law.
Except as expressly authorised by this Consitution , there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition or property or the establishing or carrying on of any trade, business, profession, vocation or employment.
(3) This Article does not invalidate or prohibit —
(a) any provision regulating personal law ; or
(b) any provision or practice restricting office or employment connected with the affairs of any religion , or of an institution managed by a group professing any religion, to persons professing that religion.
Discrimination is allowed provided that everyone in the same class is treated equally – like persons in like circumstances should be treated alike.
Key to this is the concept of classification.
Leading authority – Datuk Haji bin Harun Idris v PP (1977) – conviction for corruption. Suffian LP:
‘ Equality before the law’ does not mean that ‘all laws must be general in character or universal in application’
Parliament can make law in respect of a group or class of persons provided that the classification was
(b) founded on an intelligble differentia that distinguishes persons that are grouped together from others that are left out of the group; and
(c) there must be a reasonable nexus between the basis of classification and the object of the discriminatory legislation.
Is the Law Discriminatory? YES Is it expressly allowed by the Constitution? YES The law is valid. There is a presumption of constitutionality NO. Is the legislative classicifcation founded on an intelligible differentia ? NO. The law is unconstitutional YES. Does the classification bear a reasonable nexus to the object of the Act? YES. The law is constitutional NO. The law is unconstitutional