CHAPTER 4: ARTICLE 7

SEMESTER II 2013/2014
LLB
 A. ARTICLE 7 (1)
PROTECTION AGAINST RETROSPECTIVE CRIMINAL
LAWS
• Criminal law does not run retrospectively
• It is unfair to punish a person for doing an act
which he could not have known, at the time he
committed it, to be subject to a penalty
• The legislature should not be permitted to enact
laws with knowledge of who such laws will affect
adversely
 i. TWO LIMBS
LIMB 1
• Protection to retrospective creation of offences

LIMB 2
• Protection to retrospective increase in the
punishment for existing offences

• Note: only applicable to criminal offences

 ISSUES
1. Substantive law or procedural law?

2. A statute provides for a discretion of the court to choose

between two forms of punishment and it was amended
to provide for a mandatory one; removing the
discretionary power.
LIMB 1: RETROSPECTIVE CHANGES IN PROCEDURE
• Issue: When there is a change in procedure of a trial
after the commission of an offence, whether it
violates art 7(1)?
• E.g: trial by jury vs trial by a single judge
• Right to make unsworn statement from the dock
• Abolishment of jury system in 1995
 Case: HAW TUA TAU V PP [1980] 1 MLJ 2
Facts: A was arrested and charged on two accounts of
murder. Between the period of the charge and trial,
the right of an accused to make unsworn statement
from the dock was taken away by the CPC
(Amendment). The High Court convicted A for the
offence and he was sentenced to death penalty.
 Issue

• Whether it was constitutional to apply the change

in criminal procedure which came about after the
offence had been committed but before the
commencement of the trial.
 Court of Appeal
• The trial to make unsworn statement from the dock
is a right given to the accused at the ‘time of the
trial’.
• Before the trial, the legislature by s 186A CPC had
expressly taken away the right of an accused.
• The amendment to the procedure is not void as
being inconsistent with art 7(1).
Case: LOH KOOI CHOON V THE GOVERNMENT OF
MALAYSIA [1977] 2 MLJ 18
Facts: A was arrested under RRE. He had not been produced
before a Magistrate within twenty-four hours of his arrest.
He appealed against the conviction. Before the appeal was
heard, the Federal Constitution was amended by Act
A354/76 which provided in effect that Article 5(4) of the
Constitution shall not apply to the arrest or detention of
any person under the existing law relating to restricted
residence and that this amendment shall have effect from
Merdeka Day.
It was argued that the amendment was unconstitutional.
 Federal Court
• 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 7 of the
Constitution, 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.

• Note: It is the right of the legislature to retrospectively give effect to the

constitution.
 Case: LIM SING HIAW v PUBLIC PROSECUTOR [1965] 1 MLJ 85

Facts: A was tried and convicted for unlawful control

of a firearm in contravention of section 57(1) of the
Internal Security Act, 1960, and for consorting with
armed persons in contravention of section 58(1) of
the same Act and was sentenced to death.
On appeal it was argued inter alia:
• the trial was a nullity as it was not held before a
judge and jury under the provisions of the Criminal
Procedure Code (Cap. 6) but was heard by a judge
alone under the provisions of the Emergency
(Criminal Trials) Regulations, 1964, which came
into force after the commission of the alleged
offences but before the commencement of the trial
 Federal Court

• Regulation 4 of the Emergency (Criminal Trials)

Regulations, 1964, deals only with the mode of trial
and being purely procedural is retrospective in its
effect
• There is nothing in it which contravenes article 7(1)
of the Federal Constitution, which prohibits
punishment for an act which was not punishable by
law when it was done or made
 LIMB 2: RETROSPECTIVE CHANGES TO
PUNISHMENT PRIOR TO SENTENCING
• Removing discretionary power of the court to
choose between two forms of punishment?
• What constitutes a heavier punishment?
• Whether the amendment merely alter or affect
procedural matters or matters of the practice of the
courts?
 Case: PUBLIC PROSECUTOR v MOHAMED ISMAIL [1984] 2 MLJ 219

Facts: A was charged for an offence of trafficking in a

dangerous drug, to wit, cannabis, in contravention of
section 39B(1) of the DDA. The accused was found guilty.
On the day when the accused was found guilty, section
39B(1) of the DDA was amended to provide for the
mandatory sentence of death upon conviction in all cases
of trafficking in contravention of the section. Before the
amendment, the Court had the option of sentencing the
accused to death or imprisonment for life.
• What is the material date for determining sentence
for such offences, is it the date of the offence or the
date of convict
• If the material date was the date of conviction,
whether the amendment was constitutional so far
as cases committed before the date of its coming
into force was concerned.
 High Court
• S39B(1) DDA, in the form it now takes is open to only one
reasonable construction, namely that it is the date of conviction
which is the relevant date for purposes of sentencing
• If the section operates retrospectively, is clearly a law which
comes within the striking range of Article 7(1) of the Federal
Constitution and is therefore invalidated so far as cases where
the offence was committed prior to the date of its coming into
force are concerned
• The Court therefore has a discretion in the matter of sentence
as it is the subsection in the form it took prior to the
amendment which applies.
 Case: PUBLIC PROSECUTOR v HUN PENG KHAI &
ORS [1984] 2 MLJ 318

• Facts: A was charged with the offence under DDA and

was transmitted from SC to HC while it was still
pending trial before SC.
• The amendment to DDA confer exclusive jurisdiction
on HC to try offences in contravention with S39b of
the Act.
• The Amending Act has the effect of taking away the
jurisdiction of SC even in cases pending trial before SC
prior to the coming into force of the amendment.
 High Court
• The provisions of the Dangerous Drugs (Amendment)
Act, 1983 are not retrospective by express enactment
or by necessary implication
• Once the accused persons in this case were charged
and their cases fixed for hearing in the Sessions Court
before the coming into force of the amending Act that
gave them a vested right to trial in that court.
Consequently sections 15 and 16 of the amending Act
can in no way deprive an accused person of this right
• The amendment did not violate art7(1).
 B. Article 7 (2)
“a person who has been acquitted or convicted 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”
 General principles of article 7 (2)
First:
A person who has been acquitted of an offence shall
not be tried again for the same offence

Second:
A person who has been convicted of an offence shall
not be tried again for the same offence
 I. Article 7 (2)- Protection against repeated trial
• A person should not be put in jeopardy twice for
the same offence
• The accused may make a plea of ‘autrefois acquit’
or ‘autrefois convict’ as the case may be
• A person should not be put in double jeopardy
 a. Autrefois acquit
• It is a criminal law pleading.
• A plea made by a defendant, indicted for a crime or
misdemeanor, that he has formerly been tried and
acquitted of the same offence.
• To be a bar, the acquittal must have been by trial, and by
the verdict of a jury on a valid indictment (verdict of a
judge in Malaysia)
• There must be an acquittal of the offence charged in law
and in fact.
    
 b. Autrefois convict
• Formerly convicted.
• A plea by a person indicted for a crime for which he
or she had previously been tried and convicted.
 i. Section 302 (1) Criminal Procedure Code
Section 302 (1)
A person who has 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 might have
been made under section 166 or for which he might have
been convicted under section 167.
 Illustration to section 302 (1)
(a) A is tried upon a charge of theft as a servant and
acquitted. He cannot afterwards, while the acquittal
remains in force, be charged upon the same facts with
theft as a servant, or with theft simply, or with criminal
breach of trust.

(d) A is tried and convicted of the culpable homicide of B. A

may not afterwards be tried on the same facts for the
murder of B.
 ii. Section 302 (2) CPC

(2) A person acquitted or convicted of any offence

may be afterwards tried for any distinct offence for
which a separate charge might have been made
against him on the former trial under subsection
165(1).
 Illustration to section 302 (2)
(b) A is tried upon a charge of murder and acquitted.
There is no charge of robbery but it appears from
the facts that A committed robbery at the time
when the murder was committed; he may
afterwards be charged with and tried for robbery.
 iii. Section 302 (3) CPC
(3) A person convicted of any offence constituted by any act
causing consequences which, together with that act,
constituted a different offence from that of which he was
convicted, may be afterwards tried for that last mentioned
offence, if the consequences had not happened or were not
known to the Court to have happened at the time when he
was convicted.
 Illustrations to section 302 (3)
(c) A is tried for causing grievous hurt and convicted.
The person injured afterwards dies. A may be tried
again for culpable homicide.

(e) A is charged and convicted of voluntarily causing

hurt to B. A may not afterwards be tried for
voluntarily causing grievous hurt to B on the same
facts unless the case comes within subsection (3) of
this section.
Section 303-Plea of previous acquittal or conviction
Section 303 (1)
The plea of a previous acquittal or conviction may be
pleaded either orally or in writing, and may be in
the following form or to the following effect—
The defendant says that by virtue of section 302 of
the Criminal Procedure Code he is not liable to be
tried.
 Issues
• Whether a conviction or acquittal in the court is a
bar for disciplinary proceeding?
• Whether plea of autrefois acquit or autrefois
convict applies in preventive detention cases?
 Case: DR CHAN CHOO LIP V MALAYSIAN MEDICAL
COUNCIL, MINISTRY OF HEALTH MALAYSIA & ANOR - [2010]
6 MLJ 574

Judgment
• The acquittal by the sessions court of the applicant
is not a bar to the disciplinary proceedings intended
to be initiated against him.
• Thus, the acquittal or conviction of any of its
member in the court of law for criminal offences
should not, given their supervisory and regulatory
task, be binding on the council.
• Rational: The Medical Act is designed to regulate the
conduct and practice of its member. The medical
profession being a professional body is required to maintain
a high standard of practice, ethics and discipline for the
protection of the public that it serves. The Medical council
is therefore entitled to enforce the rules regulating the
conduct and practice of its members in the interest of not
just its members but the public as well
 Case: SIMPSON V GENERAL MEDICAL COUNCIL
[1955] NZLR 271  (PC)
“The Medical Acts are designed at the same time to protect the public
and to maintain the high professional and ethical standards of an
honourable calling. If a practitioner, having committed the grave
offences of which the appellant has been guilty, can upon such a plea
successfully resist the charge of infamous conduct and the erasure of
his name from the register, the public will lack their proper
protection and the honour of the profession may be endangered by
the continued practices of one who can still claim to be of their
number...."
 Case: PALAUTAH SINNAPPAYAN & ANOR V. TIMBALAN
MENTERI DALAM NEGERI, MALAYSIA & ORS [2010] 2 CLJ 133
Facts: A were charged at the Sessions Court for an offence of
murder, punishable under s. 304 of the Penal Code, were
subsequently acquitted and discharged. They were,
however, arrested outside the Sessions Court and taken to
the Police Station where they were detained for a period of
60 days as provided under the Emergency (Public Order
and Prevention of Crime) Ordinance 1969 (‘Ordinance’).
 Issue
• Whether the doctrine of autrefois acquit applied to
the appellants’ case thus rendering the detention
orders issued against them null and void
 Judgment
• The scope and extent of protection enshrined under art.
7(2) of the FC only apply to criminal offences wherein a
person who has been acquitted or convicted of an offence
by the court shall not be tried again for the same offence.
• It does not apply to preventive detention, more so when
the powers are given under art 149 and 150 of the Federal
Constitution.
• The principle of autrefois acquit did not apply to the
case.
 Where the plea is not applicable~~

A trial has been held to be a nullity

• Case: FAN YEW TENG V PP [1975] 2 MLJ 235
The accused has already been subjected to
preventive detention
• Case: YEAP HOCK SENG V MINISTER OF
HOME AFFAIRS, MALAYSIA [1976] 2 MLJ 279
The accused is preventively detained having already
been convicted of an offence
• Case: PP V MUSA [1970] 1 MLJ 101
The accused is charged on the different offence on
the same facts
• Case: PP V TEH CHENG POH [1978] 1 MLJ 68
• Case: JAMALI BIN ADNAN V PP [1986] 1 MLJ 162
 Case: FAN YEW TENG V PP [1975] 2 MLJ 235

Facts: A was charged and convicted of the offence. On appeal,

the court quashed the A's conviction on the ground that his
trial at the High Court had not been preceded by a
preliminary enquiry before a magistrate as required by
section 138 of the Criminal Procedure Code and was,
therefore, a nullity.
The decision of the Federal Court declaring the trial nullity
was confirmed by the Privy Council.
Subsequently, A was rearrested and charged with the
same offence. This time there was a preliminary
enquiry before his trial in the High Court and he
was convicted. A appeal against the conviction and
sentence.
The issue: the retrial was not valid as the court did
not order a retrial when it declared the earlier trial
a nullity.
 Judgment
• As the earlier trial (& conviction) was declared as a nullity, A is
not a person who has been convicted of an offence within the
meaning of article 7(2).
• The retrial did not put him in the situation of double jeopardy.
• Even there was no order for retrial, but there was in fact no trial
at the first place where the court could neither convict or acquit
A.
• Accordingly, his retrial and conviction were not in
contravention of that clause and, therefore, perfectly valid.
Case: YEAP HOCK SENG V MINISTER OF HOME
AFFAIRS, MALAYSIA [1976] 2 MLJ 279
Facts: A was arrested on suspicion of having committed murder. The
preliminary enquiry was fixed but the prosecution sought adjournment
for two times. The prosecution then informed the magistrate that they
were directed by the Deputy PP to ask the court to discharge A and the
magistrate granted the order and discharged A.
• As A walked out of the court-house he was immediately apprehended
and Police Station where the order of detention made against him by
the Minister under section 4(1) of the Emergency (Public Order and
Prevention of Crime) Ordinance, 1969, and the grounds and allegations
of fact were read and explained to and served on him.
 Case: PP V TEH CHENG POH [1978] 1 MLJ 68

Facts: A was charged with the offences of possession

of a firearm and of ammunition punishable under s
57 of the ISA 1960. A had also been charged in the
Magistrate's court for robbery and a preliminary
inquiry was pending he could not be charged in the
High Court for the offence, as this would mean he
would be in jeopardy twice.
 Case: JAMALI BIN ADNAN V PP [1986] 1 MLJ 162

Facts: A had been convicted and sentenced in the

Sessions Court on four charges of robbery with a
deadly weapon to wit a revolver. Subsequently he was
charged in the High Court for the offence of being in
control, without authority, of the revolver and
ammunition. The appellant was found guilty and
sentenced to death.
He pleaded for autrefois convict.
Issue: whether A could lawfully be charged again in
the High Court for offences constituted by the same
acts under the Internal Security Act 1960 after he
had been tried, convicted and sentenced by the
Sessions Court for the robberies with a deadly
weapon to wit a revolver under sections 392 and
397 of the Penal Code
 Judgment
(1) in order to operate as a bar the appellant must prove that
the second prosecution or trial must be either (a) for the
same offence or (b) on the same facts for any other offence
for which a different
(2) A was not charged with the same offence.
(3) the charges for armed robbery under PC were triable in
the Sessions Court but the Sessions Court was not
competent to hear charges under the ISA which carries the
mandatory death penalty.
 II. Express limitation of the right
Article 7(2)

“…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”
 i. Section 302 (4) CPC
( 4) A person acquitted or convicted of any offence
constituted by any acts may, notwithstanding the
acquittal or conviction, be subsequently charged
with and tried for any other offence constituted by
the same acts which he may have committed, if the
Court by which he was first tried was not
competent to try the offence with which he is
subsequently charged.
Case: MOHAMED YUSOFF SAMADI V AG [1975] 1 MLJ
1
Facts: P , who was a school teacher, had been charged on five charges of using
criminal force to four girls in his class to outrage their modesty. He was
acquitted on those charges. Subsequently, the Public Service Commission
instituted disciplinary proceedings against the plaintiff with a view to his
dismissal. The plaintiff was charged with five charges that he abused his
position as teacher by outraging the modesty of the same four pupils. He
applied for a declaration that regulation 11 of the Public Service
(Disciplinary Proceedings) Regulations, 1970 is ultra vires article 7(2) of
the Federal Constitution, as it applies to Singapore, and that the
determination in the Magistrate's Court was a conclusive acquittal and
discharge of the plaintiff which constituted issue estoppel or res judicata,
thus making it improper for the Public Service Commission to proceed on
the same charges
 Judgment
• No principle of law precludes a man who has been acquitted or
convicted upon a set of facts alleged to constitute an offence being
subsequently subjected upon the same facts to disciplinary action by
a domestic tribunal
• It was not improper for the Public Service Commission to institute
disciplinary proceedings in this case as the exercise by the Public
Service Commission of its powers is not by way of punishment but
rather to enforce a high standard of propriety and professional
conduct
 Case: ZAKARIA BIN ABDUL RAHMAN V KETUA POLIS
NEGARA MALAYSIA & ANOR [2001] 3 MLJ 385
Facts: P was brought to the disciplinary proceeding for acting in
contravention with the general order (he wanted to may one woman
as the second wife). P was found guilty, fined and reprimanded. P
proceeded to marry the women and the second disciplinary
proceeding was taken against him. P was charged with two breaches
of discipline, namely for conducting himself in such a manner as to
bring the public service into disrepute under general order and for
insubordination by committing polygamy under general order. P was
found guilty of both charges and was dismissed from the police.
Issue: whether disciplinary action could be taken
against any one for the second time based on the
same facts after he had been convicted or acquitted
in the earlier disciplinary proceedings, and whether
the holding that one of the charges in the second
proceedings was invalid would not vitiate the
punishment imposed on the plaintiff since the
punishment was in respect of two separate charges
Judgment
• The dismissal of public servant is governed by the code
enacted under art 132(2) of the Federal Constitution.
• The doctrine of autrefois convict and acquit is applicable to
disciplinary proceedings under a statutory code by which a
profession is governed, was apt to apply to the present case.
• The first and second proceeding were in respect of the
same conduct and therefore it amounted to double
jeopardy.