Mohamed Yusoff bin Samadi v Attorney General

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 16 May 1974
• Neutral Citation: [1974] SGHC 7
• Citation: [1974] SGHC 7
• Date: 16 May 1974
• Published date: 19 September 2003
• Plaintiff Counsel: Amarjit Singh (David Marshall)
• Docket Number: Originating Summons No 32 of 1974
• Defendant Counsel: Chao Hick Tin (Deputy Senior State Counsel)
• Court: High Court (Singapore)
• Year: 1974

The facts leading to this action are shortly as follows. The plaintiff is a teacher in a Malay Primary School. He was charged and tried in the magistrate`s court on five charges under s 354 of the Penal Code (Cap 103, 1970 Ed) of using criminal force on four girls in his class in the school knowing it to be likely that he would thereby outrage the modesty of those four girls. He was acquitted and discharged in respect of each and every charge without his defence being called.

Subsequently the Public Service Commission instituted disciplinary proceedings under reg 4 of the Public Service (Disciplinary Proceedings) Regulations 1970 with a view to the plaintiff`s dismissal. The plaintiff was charged with five charges that he abused his position as a teacher by outraging the modesty of the same four pupils.

A committee of inquiry was appointed to inquire into the case against the plaintiff. The plaintiff applied for and obtained an order from the High Court staying all further proceedings, until further order, by the committee of inquiry and the plaintiff was granted leave to apply for an order of prohibition to prohibit the committee of inquiry from proceeding further with the disciplinary proceedings against him.

The plaintiff now seeks the following declarations:

1 a declaration that reg 11 of the Public Service (Disciplinary Proceedings) Regulations, 1970 is ultra vires art 7(2) of the Federal Constitution as it applies to Singapore by virtue of the Republic of Singapore Independence Act No 9 of 1965 and consequently is null and void and of no effect

Alternatively, a declaration that:

The discretion exercised by the Public Service Commission under reg 11 to institute disciplinary proceedings against the applicant is unreasonable and/or in excess or abuse and or improper and or contrary to the principles of natural justice.

2 a declaration that the determination of the sixth Magistrate`s Court Arrest Case No 172 of 1973 in a conclusive acquittal and discharge of the applicant constitutes issue estoppel/res judicata and it is improper for the Public Service Commission to proceed on the same charges and allegations of fact or raise substantially the same issues as those determined in the plaintiffs favour.

Counsel for the plaintiff submits that art 7(2) of the Constitution of Malaysia (which continues to be in force in Singapore by virtue of s 6(1) of the Republic of Singapore Independence Act 1965 (No 9 of 1965)) prohibits any disciplinary action to be taken by the Public Service Commission for the same offences after the plaintiff had been acquitted by the criminal court. He contends that reg 11 of the Public Service (Disciplinary Proceedings) Regulations 1970, is ultra vires art 7(2) of the Constitution of Malaysia and is therefore null and void.

Article 7(2) of the Constitution of Malaysia reads:

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.

Regulation 11 of the Public Service (Disciplinary Proceedings) Regulations 1970 provides as follows:

The Public Service Commission may, where a public officer is acquitted of a criminal charge, consider the record of the proceedings of the court and may, if it is of the opinion that the public officer should be dismissed, reduced in rank or otherwise punished, cause appropriate proceedings to be instituted under these Regulations.

Article 7(2) is a constitutional entrenchment of the pleas of autrefois acquit and autrefois convict. The argument which counsel for the plaintiff contends for, to put it shortly, is that the plaintiff is entitled to plead autrefois acquit as precluding any action being taken by the Public Service Commission.

The first consideration is whether the principle of autrefois acquit has any application in the present case. The phrases `autrefois acquit` and `autrefois...