Gunalan s/o Govindarajoo v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 19 July 2000
• Neutral Citation: [2000] SGHC 143
• Docket Number: Criminal Revision No 13 of 2000
• Date: 19 July 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: S Gogula Kannan (SK Kumar & Associates)
• Citation: [2000] SGHC 143
• Defendant Counsel: Jennifer Marie and Gilbert Koh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Abuse of process,Previous acquittals or convictions,Whether order made in breach proceedings amounted to conviction,Whether criminal proceedings following breach proceedings oppressive,Criminal Procedure and Sentencing,Autrefois convict,Applicable principles,Whether petitioner suffering prejudice from failure to stay breach proceedings,Whether previous breach proceedings concerned facts or offences substantially similar to subsequent criminal charges,Sentencing

: This was a petition by a young person, as defined by the Children and Young Persons Act (Cap 38) (`CYPA`), for the court to exercise its power of revision to quash the finding of guilt or alter the order given in the court below on the ground of autrefois convict or abuse of process.

The facts

The petitioner was 15 years old at the time of the petition. He committed his first set of offences at age 13, and was found guilty of two counts of theft of motor cycle under s 379A of the Penal Code (Cap 224) and one count of fraudulent possession of helmet under s 35(1) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184) on 26 May 1998. Three further counts of theft of motor cycle were taken into consideration. For these offences, he was ordered to reside in an approved school, the Salvation Army Gracehaven (`Gracehaven`) for 24 months, commencing on 26 May 1998 (`the first order`).

The approved school regime provides a structured and disciplined environment for rehabilitation. Juveniles who are sent to an approved school generally have committed serious offences and exhibit a need for an institutional environment, whether because of problems at home, association with undesirable peers or active membership in secret societies.

There are presently five approved schools, which differ in the strictness of their regime and in the tightness of their security. At the more liberal end of the spectrum are two approved schools run by voluntary welfare organisations: Muhammadiyah Welfare Home and Gracehaven. Those who are sent to Gracehaven tend to be those who need institutional care but who do not have serious delinquent traits. Residents of Gracehaven are allowed to attend school and to work outside the home. After the first few months, home leave on the weekends is granted to those who show positive behaviour.

Further along the spectrum are two approved schools run by the Ministry of Community Development and Sports. They are the Toa Payoh Girls` Home and the Singapore Boys` Home (`SBH`). Juveniles who are sent to these homes tend to exhibit a greater degree of delinquency compared to those who are sent to Muhammadiyah Welfare Home or Gracehaven. The strictest regime and tightest security is found at the Reformative Training Center (`RTC`), run by the Prisons Department of the Ministry of Home Affairs.

On 25 November 1999, the Superintendent of Gracehaven (`the superintendent`) instituted breach proceedings under s 44(2)(a) of the CYPA (`the breach proceedings`) against the petitioner. The provision states:

Where a Juvenile Court is satisfied, on the representations of the manager of a place of detention, an approved school or an approved home, that a person ordered to be detained in the place of detention, approved school or approved home is of so unruly a character that he cannot be so detained, the Court may -

(a) order the person to be transferred to and detained in an approved school or in another approved school, as the case may be, which the Court considers more suitable for him and to be detained there for the whole or any part of the unexpired period of detention;

The juvenile court called for a progress report. In the report, presented on 14 December 1999, the superintendent stated that while the petitioner behaved reasonably well under the supervision of the home, he had serious problems when outside home supervision. The latter occurred more often than desired in view of his frequent abscondence from the home, which in all totalled 71 days. While at large, the petitioner would associate freely with undesirable peers, staying overnight with them, smoking and loitering in the streets aimlessly, as well as engaging in sex with a female resident of the home. The superintendent was of the view that the petitioner would benefit from staying in a more regimented environment with closer supervision. The juvenile court accepted the recommendation and transferred the petitioner to SBH for the unexpired period of the first order.

On 27 January 2000, the petitioner was charged with three counts of carnal connection with a girl under 16 years (the female resident of the home), an offence under s 140(1)(i) of the Women`s Charter (Cap 353). Two further counts of s 140(1)(i) of the Women`s Charter were taken into consideration.

Decision of the juvenile court

At the carnal connection proceedings, the petitioner asked to be allowed to stay in SBH. The juvenile court exercised its power under s 44(1)(g) of the CYPA and ordered the petitioner to be sent to SBH for 24 months (`the second order`).

The petition

Subsequently, a petition was made to this court, asking it to exercise its power of revision to quash the finding of guilt made in respect of the carnal connection charges or alternatively to alter the second order by reducing the period of residence at SBH. Two arguments were canvassed in support of the petition: autrefois convict and abuse of process.

Autrefois convict

The petitioner`s chief argument was that of autrefois convict. This common law principle is enshrined in art 11(2) of the Constitution, which states:

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 convicted or acquitted.

The House of Lords had the opportunity to consider this doctrine in an extensive manner in Connelly v DPP [1964] AC 1254[1964] 2 All ER 401. In a much cited passage in Connelly at [1964] AC 1254, 1305; [1964] 2 All ER 401, 412, Lord Morris set out nine propositions which in his view `both principle and authority establish`. Of direct relevance to this case are the following:

(1) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted;

(2) ...

(3) that the same rule applies if the crime in respect of which he is being charged is in effect the same, or is substantially the same, as either the principal or a different crime in respect of which he has been acquitted or could have been convicted;

(4) that one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment either as to the offences charged or as to an offence of which, on the indictment, the accused could have been found guilty ...

As Lord Bridge observed in Lee Wee Harry v Law Society of Singapore SLR 41 at p 47, in Connelly , Lord Devlin had a different view from Lord Morris. He took a stricter view of autrefois convict and said that for the doctrine to apply it must be the same offence in both fact and law, and not merely where the offences were substantially the same. His Lordship`s difficulty was with the idea that an offence may be substantially the same as another in its legal characteristics, since in his view legal characteristics are precise things and are either the same or not. Lord Bridge did not find it necessary in Lee Wee Harry to find which view was correct, and neither was it necessary here. Even on Lord Morris` more liberal test of substantial similarity of offence in both fact and law, the petitioner`s argument of autrefois convict failed.

The autrefois convict argument presented before me by counsel for petitioner rested on three propositions, of which the first two...