OF RETROSPECTIVE CRIMINAL LAWS AND PROSPECTIVE OVERRULING: REVISITING PUBLIC PROSECUTOR v TAN MENG KHIN & 24 ORS

• Author: SENG KIAT BOON, DANIEL
• Date: 01 December 1996
• Published date: 01 December 1996

The recent decision of the Court of Appeal in PP v Tan Meng Khin & 24 Ors1 marks two historic watersheds. It is only the second time in our legal history that a division of five judges has been convened in the Court of Appeal2. More significantly, it is the first time since the issue of the Practice Statement (Judicial Precedent)3 that the Court of Appeal as the final appellate court has exercised its powers to overrule its previous decision in PP v Fo Son Hing4. What makes this overruling even more significant is that Fo Son Hing was only decided a year ago.5 With the abolition of appeals to the Privy Council,6 pronouncements by the Court of Appeal on any point of law have become final and conclusive. So Tan Meng Khin has become the final statement of the law on unlawful assemblies. But so was Fo Son Hing before it was overruled. The overruling of Fo Son Hing posed numerous interesting yet difficult issues that, however, were not fully canvassed by counsel.7 For instance, what is the effect of overruling a previous decision of the Court of Appeal on a point of statutory construction? Moreover, what effect will the overruling of Fo Son Hing have on acts done before and after the decisions in Fo Son Hing and Tan Meng Khin? Will the overruling of Fo Son Hing render these acts retrospectively criminal? This article seeks to explore these issues, and will also attempt to suggest some answers. The author will argue that Article 11(1) of the Constitution of the Republic of Singapore requires the Court of Appeal to give its decision in Tan Meng Khin only prospective, and not retrospective, effect. Otherwise, a criminal offence will be created

retrospectively.8 If these arguments are accepted by the Court of Appeal, this will mark the first recognition of the doctrine of prospective overruling by our courts.

Before these issues are explored in this article, some background on these two cases is necessary.

The Decisions in Fo Son Hing and Tan Meng Khin

Fo Son Hing and Tan Meng Khin share the same fact situation. Both concerned prosecutions for the offence of gaming in a common gaming house, punishable under s 7, Common Gaming Houses Act (Cap 49) (‘CGHA’). But the accused in both cases were not charged under s 7, CGHA. Instead, they were charged under s 141(c) of the Penal Code (Cap 224) read with s 40(3) of the Penal Code.

Section 141 reads:

141. An assembly of 5 or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is —

…

(c) to commit any mischief or criminal trespass, or other offence.

Section 40 reads:

40.—(1) Except in the Chapters and sections mentioned in subsections

(2) and (3), “offence” denotes a thing made punishable by this Code.

…

(3) In sections 141, 176, 177, 201, 202, 212, 216 and 441, “offence” has the same meaning when the thing punishable under any other law for the time being in force is punishable under such law with imprisonment for a term of 6 months or upwards, whether with or without fine.

The accused in both cases faced a common charge for being members of an unlawful assembly where they had the common object of committing the offence of gaming in a common gaming house. A charge based on s 7, CGHA, would require the prosecution to establish both the mens rea and actus reus of gaming in a common gaming house. But the charge as actually framed was for the offence in which the mens rea was that of gaming in a common gaming house, and the actus reus was that of an unlawful assembly. Because of the choice of the charge, the prosecution did not have to prove the actus reus of gaming. The actus reus of gaming could be quite difficult

to prove since, not infrequently in police raids, the offenders will take steps to destroy the incriminating evidence.9 Instead, the actus reus for the offence disclosed in this charge is easily established since an assembly of five or more persons under s 141 is an “unlawful assembly”.

The accused challenged the validity of this charge. It was argued, that by reading s 141 (c) with s 40, the offence that the accused had the common object of committing must be one punishable with “imprisonment for a term of 6 months or upwards”. The offence in question here was a s 7, CGHA offence. As the maximum term of imprisonment for this offence was six months, counsel for the accused submitted that this did not fall within the ambit of s 141(c) (as read with s 40). The issue thus was one of statutory construction: Does the phrase “imprisonment for a term of 6 months or upwards” in s 40(3) refer to offences that have a mandatory minimum sentence of six months or more? Or does it refer to offences punishable with a maximum term of imprisonment of six months or more?

As the first authoritative judicial pronouncement on this issue, Fo Son Hing settled this question in favour of the former construction. But unlike most other decisions of the Court of Appeal, it was not a unanimous decision.10 The majority, consisting of LP Thean JA and Goh Joon Seng J, agreed with the decision of Karthigesu J11 in the High Court and held that a s 7, CGHA offence was not an offence falling within s 40(3) of the Penal Code. The majority reasoned that an offence punishable with imprisonment for a term not exceeding six months (s 7, CGHA) was not the same as one punishable with imprisonment for a term of six months or upwards (s 40(3), Penal Code). The Chief Justice disagreed, but his powerful dissenting judgment was in the minority.

The Court of Appeal had the opportunity to review its decision in Fo Son Hing when it heard Tan Meng Khin. The case for 25 accused in Tan Meng Khin was first heard in the Subordinate Courts. Before the learned magistrate, the DPP submitted that the magistrate was bound by the Court of Appeal’s decision in Fo Son Hing. The learned magistrate agreed and acquitted the 25 accused on the basis that the common charge, identical to that in Fo Son Hing, did not disclose any punishable offence. The prosecution then appealed. Rubin J, who heard the appeal, dismissed it, ruling that he, too, was bound to follow the binding decision of a superior

court. However, Rubin J permitted an application by the prosecution12 for points of law of public interest to be referred to the Court of Appeal for its ruling. This time, a court of five sat, which included all the High Court and Court of Appeal judges who had previously heard Fo Son Hing.13 After hearing fresh arguments on what were essentially the same issues of statutory interpretation of s 7, CGHA and ss 40(3) and 141, Penal Code, their Honours reserved judgment. The unanimous judgment of the court was delivered by the Chief Justice on 31st May, 1995. In a volte-face, the Court of Appeal agreed with the dissenting judgment of the Chief Justice in Fo Son Hing. In so doing, their Honours held that Fo Son Hing was wrongly decided and overruled it.

Pursuant to the powers of the Court of Appeal in a criminal reference, the court took the unusual step of sending the accused’s case back to the Subordinate Courts for their defence to be called.14

This article starts off with the following questions: What defences, constitutional or otherwise, can the accused avail themselves? Can the accused be convicted of the same offence for which they have been charged and acquitted? This was apparently a matter of some concern to Rubin J. When Rubin J permitted the criminal reference, his Honour had observed that at the time the accused were alleged to have committed the offence, according to the state of the law as it then was, no successful prosecution could have been maintained against them.15

Article 11(2) of the Constitution

Article 11 of the Constitution of the Republic of Singapore supplies some answers. It states:

11.—(1) No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.

(2) 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. (my emphasis)

Article 11(2) does not just embody the rule against double jeopardy. In Harry Lee Wee v Law Society of Singapore16, the Privy Council observed that Article 11(2) is part of a wider common law doctrine usually expressed as the principles of autrefois convict or autrefois acquit. But in either case17, the rule or doctrine only applies in so far as the conviction or acquittal has not been quashed. By causing the defence of the accused to be called in exercise of its powers under s 60(4), Supreme Court of Judicature Act (Cap. 322) (“SCJA”)18, the Court of Appeal has in effect quashed the acquittal of these 25 accused. The exception to Article 11(2) applies. As such, the accused are now precluded from raising the rule against double jeopardy as a defence.19

Article 11(1): Nullum crimen nulla poena sine lege

At the time the accused had committed the offence, it is arguable that what they did was “not punishable by law when [the act] was done or made.” If so, do they have a defence in Article 11(1)?

Article 11(1) is the constitutional entrenchment of the principle of nullum crimen nulla poena sine lege, which is also known as the legality principle:

(No crime (or penalty) without law making it so). A maxim embodying the basic principle of the criminal law that conduct cannot be punished as criminal unless some rule of law has already declared conduct of that kind to be criminal and punishable as such. This principle, accordingly, denies the validity of retrospective declaration of the criminality of any kind of conduct and also the justifiability of a court or judge declaring to be criminal when a case arises anything not...