Cheong Seok Leng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong JC
• Judgment Date: 01 June 1988
• Neutral Citation: [1988] SGHC 48
• Date: 01 June 1988
• Subject Matter: Whether assignment amounts to forced labour,ss 5 & 15(1) Vigilante Corps Act (Cap 80, 1970 Ed),Construction of statute,Statutory offences,Absence from National Service,Fundamental liberties,National serviceman assigned to Construction Brigade,Prohibited forced labour,Civil defence duties,Whether publication of subsidiary legislation in Gazette mandatory or directory,Assignment under s 5(b) of the Vigilante Corps Act (Cap 80, 1970 Ed),Statutory Interpretation,Administrative Law,Ejusdem generis,s 23(1) Interpretation Act (Cap 1),Administrative powers,Validity of minister's assignment,art 58 Constitution of the Republic of Singapore,Vigilante Corps Act (Cap 80, 1970 Ed),Constitutionality of assignment,Nature and meaning of s 5(b) of the Vigilante Corps Act (Cap 80, 1970 Ed),Validity of assignment,Power of minister to assign national serviceman to Construction Brigade,s 10 Enlistment Act (Cap 93),Minister's assignment of national servicemen to civil defence duties,Criminal Law,Constitutional Law,Whether assignment a subsidiary legislation,Delegated legislation,Whether publication of subsidiary legislation mandatory or directory,art 10(2) Constitution of the Republic of Singapore
• Docket Number: Magistrate's Appeals Nos 8 and 13 of 1987
• Published date: 19 September 2003
• Defendant Counsel: Bala Reddy
• Court: High Court (Singapore)
• Plaintiff Counsel: Wee Pan Lee (Wee Tay & Lim)

Cur Adv Vult

The appellant was convicted on the following charge by a district court on 15 November 1984:

That you, being a full-time national serviceman in the Vigilante Corps, did unlawfully absent from duty at Civil Defence School II, Mandai Road, Singapore, from 9 July 1983 to 24 August 1983 a total of 50 days, with the intention of not returning to your duty and you are thereby deemed to have deserted national service and committed an offence punishable under s 15(1), Cap 80 of the Vigilante Corps Act, 1970 Ed.

In sentencing the appellant to four months` imprisonment with effect from 22 August 1986, which was the day the appellant had been lawfully detained in a drug rehabilitation centre, the court took into account another 46 charges against the appellant for having been absent without leave.

The appellant has appealed against his conviction and the public prosecutor has appealed against the sentence.

The facts, which were not disputed, were as follows. The appellant was on 5 May 1983 served an enlistment notice with accompanying instructions pursuant to s 10 of the Enlistment Act (Cap 93) and was on 22 June 1983 enlisted for full-time national service in the Vigilante Corps. For his national service, he was posted to the Construction Brigade and was required to undergo a three-month residential training at the Civil Defence School II for the acquisition of skills in construction work. Initially, he was being trained as a bar bender. During his course of training, he was allowed to leave the school from 1pm on Saturdays and had to report back to the school by 9pm on Sunday. He was paid an allowance for each working day. He left the school one Saturday on 2 July 1983 at 1pm but failed to return by 9pm on Sunday. He reported that he was unfit for duty and medical certificates covering the period 4-8 July 1983 were tendered by his mother. He failed to report at 9pm on 8 July 1983 and continued to absent himself from duty for 50 days from that day until 24 September 1983. He was arrested by CNB officers on 13 October 1983 and was admitted to Selarang Park Drug Rehabilitation Centre for treatment for drug addiction. On 30 May 1984, he was transferred to Jalan Awan Drug Rehabilitation Centre until 16 November 1984 when he was discharged. He was then arrested upon his discharge.

The appellant did not dispute the evidence of the officer in charge of Civil Defence School II that he had briefed all newly enlisted national servicemen in the Vigilante Corps who were assigned to the Construction Brigade on their training and duties in compliance with a direction issued by the Minister for Home Affairs, Singapore, to the Commandant, Vigilante Corps, on 5 April 1982. The appellant and the other enlistees were told that by virtue of their enlistment they were under an obligation to undergo the training and that if they were absent without good cause from their training, they would be liable to prosecution in court.

The said direction of the minister (which I will hereinafter refer to as `the assignment`) was in the following terms:

The Vigilante Corps Act (Cap 80, 1970 Ed)

Assignment under s 5(b)

Commandant

Vigilante Corps

I, Chua Sian Chin, Minister for Home Affairs, in pursuance of the provisions of s 5(b) of the Vigilante Corps Act, hereby assign to the Vigilante Corps with effect from 5 October 1981, civil defence duties for the defence of Singapore, such duties to include the training of personnel and the acquisition of skills in construction works.

Dated this 5th day of April 1982.

Signed Chua Sian Chin

Minister for Home Affairs

Singapore

It was not disputed that the assignment had not been published in the Gazette.

At the end of the prosecution`s case, the appellant elected to remain silent. His counsel made a submission of no case to answer on the following grounds:

(1) that the assignment was ultra vires the Vigilante Corps Act and therefore the appellant as a member of the Vigilante Corps was under no duty to undertake or perform civil defence duties;

(2) that the imposition of construction work on the appellant was unconstitutional as a form of forced labour prohibited by art 10(2) of the Constitution of the Republic of Singapore;

(3) that the assignment was invalid or had no effect as it had not been published in the Gazette as required by s 23(1) of the Interpretation Act;

(4) that if the assignment was valid, the appellant had no notice of it.

The learned district judge rejected all these submissions and convicted the appellant.

In this appeal, counsel for the appellant and the deputy public prosecutor relied on the same arguments made in the court below. As a starting point for the determination of issues of this nature, I adopt the approach set out by Lord Diplock in his judgment in McEldowney v Forde [1971] AC 632 at p 658, which is as follows:

The division of functions between Parliament and the courts as respects legislation is clear. Parliament makes laws and can delegate part of its power to do so to some subordinate authority. The courts construe laws whether made by Parliament directly or by a subordinate authority acting under delegated legislative powers. The view of the courts as to whether particular statutory or subordinate legislation promotes or hinders the common weal is irrelevant. The decision of the courts as to what the words used in the statutory or subordinate legislation mean is decisive. Where the validity of subordinate legislation made pursuant to powers delegated by Act of Parliament to a subordinate authority is challenged, the court has a threefold task: first, to determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorized to make; secondly, to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with that description.

Meaning of s 5(b) of the Vigilante Corps Act

The words used by Parliament to describe the subordinate legislation which the Minister was authorized to make is enacted in s 5 of the Vigilante Corps Act. It reads:

5 The Corps shall -

(a) assist the police force in the maintenance of law and order, the preservation of public peace, the prevention and detection of crime and the apprehension of offenders; and

(b) perform such other functions and duties as may be assigned to the Corps by the Minister.

The submission of counsel for the appellant is that s 5 does not permit the minister to assign civil defence duties to the Vigilante Corps. It is contended that paras (a) and (b) of s 5 form an integral provision and that the words `such other functions and duties` in para (b) should be construed ejusdem generis with the genus of functions and duties of the Vigilante Corps as set out in para (a). It is then further contended that on such a construction the other functions and duties in para (b) must be restricted to police duties since para (a) is reproduced from s 8 of the Police Force Act (Cap 235, 1985 Ed). In other words, the genus in para (a) is police duties.

Counsel also relies on the principle of noscitur a sociis in support of his construction of para (b) of s 5. As the noscitur a sociis principle is a general principle of construction of which the ejusdem generis principle is a particular precept (see Bennion on Statutory Interpretation (1984) at p 823), this argument is no different in substance from that founded on the application of the ejusdem genesis principle.

The learned district judge rejected this submission. He held that no limitation should be placed on the powers of the Minister under para (b). His reasons are set out in the following passage in his grounds of decision:

I held that the ejusdem generis rule has no application to s 5 of the Vigilante Corps Act. The general words are to be found in a separate subsection from that in which the specific words are contained. In my view, this evinces that a sense wider than the genus of the specific preceding subsection was intended. I am fortified in this by the fact that sub-s (a) is by itself so comprehensive as not to admit of any expansion within its genus. Hence, Parliament`s intention in enacting sub-s (b) could only have been to enable the Minister to extend the functions and duties of the Vigilante Corps beyond the scope of sub-s (a). To confine the functions and duties assignable by the Minister to those of like nature and quality as the kind suggested by sub-s (a) would, in my judgment, be to place a limitation on the Minister`s powers not called for by the enactment.

I do not find the first reason convincing. The circumstance that the functions and duties of the Vigilante Corps are contained in two separate paragraphs in s 5 of the Vigilante Corps Act cannot, by itself, be a sufficient reason for excluding the application of the ejusdem generis principle. The collocation of the words in s 5 under two paragraphs appears to me to reflect a drafting predilection and nothing more. This can be tested simply by removing the numbering of the paragraphs. Read in this way, no change in the meaning or scope of s 5, whatever it is, is discernable.

The second reason is somewhat obscure since the district judge has not identified the genus in para (a) that was so comprehensive that it could not admit of any expansion to accommodate other functions and duties that were assignable to the Vigilante Corps. He could not have meant that para (a) contained no genus since he expressly stated that the genus was too comprehensive. He could have meant that as the words in para (a) are wider than the words in para (b), the ejusdem generis principle is not applicable because the principle applies only to general words following words which are less general (see Bennion (ibid) para 383). On the...