Haw Tua Tau and Another v Public Prosecutor

• Judge: Lord Diplock
• Judgment Date: 22 June 1981
• Neutral Citation: [1981] SGPC 1
• Citation: [1981] SGPC 1
• Defendant Counsel: George Newman QC and George Warr (Phillip Conway Thomas & Co),George Newman QC (Coward Chance),Stuart McKinnan QC, Jonathan Havie and Richard King (Jaques & Co)
• Published date: 19 September 2003
• Plaintiff Counsel: Louis Blom-Cooper QC and A Newman (Kingsford Dorman)
• Date: 22 June 1981
• Docket Number: Privy Council Appeals Nos 56 of 1980; 22 and 23 of 1981
• Court: Privy Council
• Subject Matter: Accused not compelled to give evidence and to submit to cross examination,'Transport',Arts 4 & 9(1) Constitution of the Republic of Singapore,Accused not compelled to give evidence and to submit to cross-examination,'Traffic',Interpretation,Amendment to Criminal Procedure Code,Supremacy,Privilege against self-incrimination,Constitution,Accused called upon to give evidence,Adverse inferences drawn from accused remaining silent when defence called,Constitutional Law,Adverse inferences from failure to do so,Words and Phrases,Whether procedure introduced contrary to fundamental rule of natural justice,Whether amendment inconsistent with Constitution,arts 4 & 9(1) Constitution of the Republic of Singapore,Whether Act of Parliament inconsistent with Constitution,Constitutional provisions,Misuse of Drugs Act 1973,Whether contrary to fundamental rule of natural justice,Statutory Interpretation,ss 188, 189, 190 & 195 Criminal Procedure Code (Cap 113)

These three appeals from the Court of Criminal Appeal of Singapore, which were heard together because they raised a single and identical point of law, arise out of two separate trials for different capital offences that were tried before two judges of the High Court under the section that bears the number 193 in the 1980 reprint of the Criminal Procedure Code. Throughout these reasons for their decision dismissing the appeals, which was given orally on 30 April 1981, their Lordships will refer to the relevant sections of the Criminal Procedure Code as they are numbered in the current reprint.

Haw Tua Tau was charged with the murder of two persons. He was convicted of both offences by the unanimous decision of the two High Court judges (FA Chua and AP Rajah JJ). He appealed against his conviction to the Court of Criminal Appeal, and his appeal was dismissed on 7 September 1979. Low Hong Eng and Tan Ah Tee were charged jointly with trafficking in 459.3g of diamorphine - a quantity that attracts a mandatory death penalty under the Misuse of Drugs (Amendment) Act 1975. They were convicted of that offence by the unanimous decision of Choor Singh J and Rajah J and their appeals against their convictions were dismissed by the Court of Criminal Appeal on 10 October 1979.

It is unnecessary for their Lordships to say anything about the various grounds relied on by any of the appellants in the Court of Criminal Appeal. They were plainly without merit and none of them was pursued before this Board. Nor is it necessary to say anything more about the evidence at either of the trials that led to the convictions of the appellants, except that in each of them, at the conclusion of the prosecution`s case, the presiding judge addressed to the accused what since the passing of the Criminal Procedure Code (Amendment) Act 1976 (Act No 10 of 1976), has become the standard allocution, and formally called upon them to give evidence; each of the accused, after consulting counsel, did in fact give evidence in his or her defence.

The standard allocution, which their Lordships will set out later in these reasons, follows closely the terms of ss 188(2) and 195(1), (2) and (3) of the Criminal Procedure Code which were inserted in the Code by Act No 10 of 1976 and abolished the previously existing right of the accused to make an unsworn statement without subjecting himself to cross-examination. The only question argued before this Board was the contention, common to all three appellants that the amendments made to the Criminal Procedure Code by Act No 10 of 1976 were inconsistent with art 9(1) of the Constitution of Singapore that `No person shall be deprived of his life or personal liberty save in accordance with law` and, being inconsistent, were rendered void by art 4.

The whole foundation of the argument on which this contention was based was the interpretation that this Board had placed on the expression `law` in the context of art 9(1) in the case of Ong Ah Chuan v PP [1980-1981] SLR 48 ; [1981] AC 648. The Board`s judgment in that case was delivered on 15 October 1980, more than a year after the judgments of the Court of Criminal Appeal of Singapore in the instant appeals; so the point about the unconstitutionality of the amending Act No 10 of 1976 for inconsistency with art 9(1) of the Constitution, in the form that it was presented to their Lordships in the instant appeals, was not available to be taken by the appellants in the Court of Criminal Appeal.

It was this exceptional circumstance, coupled with the fact that these are capital cases, that induced this Board to give special leave to appeal in order to raise the question of the inconsistency of Act No 10 of 1976 with art 9(1) of the Constitution of Singapore, notwithstanding that the point was not taken in the courts in Singapore. In doing so their Lordships had no intention of departing from the policy declared in Ong Ah Chuan v PP that if at the conclusion of the argument they had entertained any doubt as to the constitutionality of an impugned Act of the Singapore Parliament they would have remitted the case to the Court of Criminal Appeal to hear argument upon the constitutional point so that this Board might have the benefit of that court`s opinion before reaching its own final decision. In the result, however, the arguments that have been addressed to them have not succeeded in raising in their Lordships` minds any doubt as to the constitutionality of ss 188(2) and 195(1), (2) and (3) of the Criminal Procedure Code; so no prior remission to the Court of Criminal Appeal was needed in order to enable the decision to be given on 30 April 1981 at the conclusion of the argument in these appeals.

The passage in the judgment of this Board in Ong Ah Chuan v PP [1980-1981] SLR 48 ; [1981] AC 648 upon which the appellants relied, appeared in a part of that judgment that was disposing of an extreme contention that had been made on behalf of the Public Prosecutor: that so long as the deprivation of life or personal liberty was authorised by a written law passed by the Parliament of Singapore, there could be no breach of art 9(1) of the Constitution, however arbitrary and procedurally unfair that written law might be. What the Board said in answer to that extreme contention was:

In a Constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to `law` in such contexts as `in accordance with law`, `equality before the law`, `protection of the law` and the like, in their Lordships` view, refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. It would have been taken for granted by the makers of the Constitution that the `law` to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules. If it were otherwise it would be misuse of language to speak of law as something which affords `protection` for the individual in the enjoyment of his fundamental liberties, and the purported entrenchment (by art 5) of arts 9(1) and 12(1) would be little better than a mockery.

The subsequent paragraphs of the judgment made clear their Lordships` view that neither art 9(1) nor 12(1) called for the perpetuation of the rules of criminal procedure or of evidence as they existed in Singapore when the Constitution came into force on 16 September 1963. So no amendment to the Constitution is needed to empower the legislature of Singapore (the President and Parliament) to enact whatever laws it thinks appropriate to regulate the procedure to be followed at the trial of criminal offences by courts in Singapore; subject only to the limitation that so long as art 9(1) remains unamended such procedure does not offend against some fundamental rule of natural justice. It must not be obviously unfair. So the question for their Lordships is not whether Act No 10 of 1976 made a significant alteration to the disadvantage of accused persons in the procedure previously followed in criminal trials in Singapore (as indisputably it does), but whether the consequence of the alteration is a procedure for the trial of criminal offences that is contrary to some fundamental rule of natural justice.

It would be imprudent of their Lordships to attempt to make a comprehensive list of what constitute fundamental rules of natural justice applicable to procedure for determining the guilt of a person charged with a criminal offence. Nor is this necessary in order to dispose of these three appeals. The only rule alleged to be the fundamental rule of natural justice, against which the appellants claim Act No 10 of 1976 offends, is the so-called privilege against self-incrimination as expressed in the latin maxim nemo debet se ipsum prodere.

Under the Criminal Procedure Code as it stood when the Constitution came into force in 1963, the accused had the option of either making an unsworn statement from the dock on which he could not be cross-examined, or of giving evidence on oath or affirmation and thereby submitting himself for cross-examination too. This option had been enjoyed in England since the Criminal Evidence Act of 1898 first made persons accused of felony competent, though not compellable, witnesses in their own defence. The continued retention of this option on the part of the accused has been the subject of consideration and report in England by the Criminal Law Revision Committee in 1972. They strongly recommended its abolition and made provision for this in cll 4 and 5 of the draft Bill annexed to their Report (Cmnd 4991). No effect has yet been given to this recommendation by the Parliament of the United Kingdom; and in the meantime the recommendation has been reinforced by the approval of the Royal Commission on Criminal Procedure (in England) which reported as recently as January 1981 (Cmnd 8092). That the Parliament of Singapore for its part was aware of and approved and adopted this recommendation of the English Criminal Law Revision Committee as applicable to criminal procedure...