Public Prosecutor v Taw Cheng Kong

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 22 May 1998
• Neutral Citation: [1998] SGCA 37
• Docket Number: Criminal Reference No 1 of 1998
• Date: 22 May 1998
• Year: 1998
• Published date: 19 September 2003
• Plaintiff Counsel: Chan Sek Keong SC (Attorney General and Public Prosecutor) and Muhd Hidhir Majid (Deputy Public Prosecutor)
• Citation: [1998] SGCA 37
• Defendant Counsel: Michael Khoo SC and Josephine Low (Michael Khoo & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Legislature,Constitutional Law,s 37(1) Prevention of Corruption Act (Cap 241, 1993 Ed),To observe international comity and sovereignty of other nations whether rational for s 37 (1) of Prevention of Corruption Act to exclude non-citizens,Whether s 37(1) under-inclusive or over-inclusive,s 37(1)Prevention of Corruption Act (Cap 241, 1993 Ed),Enactment of Republic of Singapore Independence Act 1965,Parliament's possession of unlimited legislative powers,Constitution,Rebutting presumption,Interpretation,Concept of equality,Federal Constitution [Malaysia] Part VI,Constitution of the Republic of Singapore art 12,Whether postulation of examples of arbitrariness without adducing evidence can rebut presumption,Whether classification in s 37(1) Prevention of Corruption Act (Cap 241, 1993 Ed) on grounds of citizenship is arbitrary or unreasonable,Presumption of constitutionality,Burden on party challenging constitutionality,Equality before the law,Parliament,Republic of Singapore Independence Act 1965 ss 5 & 6,Prevention of Corruption Act (Cap 241, 1993 Ed) s 37(1),Effect of s 5 and s6 of the Republic of Singapore Independence Act 1965,Singapore's acquisition of attributes of sovereignty on independence,Whether criticisms of differentiation in s 37(1) Prevention of Corruption Act (Cap 241, 1993 Ed) founded,Whether Parliament competent to legislate during hiatus in constitutional law between 9 August and 22 December 1965 -Vesting of plenary legislative powers of Malaysian Parliament in Singapore Parliament under s 5 Republic of Singapore Independence Act 1965,Whether Parliament possesses extraterritorial competence,Effect of acquiring full plenary powers of legislation,Prevention of Corruption Act (Cap 241, 1993 Ed) s 37(1) -ss 5 & 6 Republic of Singapore Independence Act 1965,Whether extraterritorial provision in s 37(1) Prevention of Corruption Act (Cap 241, 1993 Ed) ultra vires powers of legislature,Power to enact extraterritorial laws

Judgment:

1.YONG PUNG HOW CJ

Criminal reference from Chan Sek Keong SC Muhd Hidhir Majid Michael Khoo SC Josephine Low (Michael Khoo & Partners)

Background

This criminal reference arose out of the acquittal of the respondent in a magistrate`s appeal for offences under s 6(a) read with s 37(1) of the Prevention of Corruption Act (Cap 241, 1993 Ed) (PCA).

2.It is unnecessary to repeat the facts of the case which have been set out in the judgment of Karthigesu JA who heard the appeal (see MA 117/97 at [1998] 1 SLR 943). Suffice it to say that the respondent, who was based in Hong Kong as the Asia Pacific regional manager of the Government of Singapore Investment Corporation Pte Ltd (GIC), was alleged to have accepted `incentive fees` from one Kevin Lee (Lee) of Rockerfeller & Co Inc New York to make GIC purchases of certain counters in Hong Kong and Australia under Lee`s instigation.

3.The respondent`s eventual acquittal rested basically on three planks: (a) that s 37(1) of the PCA was in constitutional violation of art 12(1) of the Constitution; (b) that s 37(1) was ultra vires the powers of the legislature; and (c) that there was insufficient evidence for a conviction under the charges for corruption.

4. The two questions

After the acquittal, pursuant to s 60 of the Supreme Court of Judicature Act (Cap 322), the Attorney General and Public Prosecutor applied for a criminal reference for two questions of law to be considered by the Court of Appeal, namely:

1 Whether s 37 of the Prevention of Corruption Act (Cap 241, 1993 Ed) is ultra vires the powers of the legislature; and

2 Whether s 37 of the Prevention of Corruption Act is inconsistent with art 12(1) of the Constitution of the Republic of Singapore.

5.Comprehensive and detailed submissions were heard from both sides. At the end of the hearing of the criminal reference, we answered both questions in the negative. We now give our reasons.

Whether s 37(1) of the PCA was ultra vires the powers of the legislature

(a) The decision in the magistrate`s appeal

6.With regard to whether s 37(1) of the PCA was ultra vires the powers of the legislature, we first considered how the learned judge came to his conclusion. Essentially, it was reasoned that Parliament in Singapore (Parliament) has no power to legislate extraterritorially. This is because, following Singapore`s separation from Malaysia in 1965, the Republic of Singapore Independence Act (RSIA) contained the following vital provisions:

6 (1) The provisions of the Constitution of Malaysia, other than those set out in subsection (3), shall continue in force in Singapore subject to such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the independent status of Singapore upon separation from Malaysia.

(2)

(3) The following provisions of the Constitution of Malaysia shall cease to have effect in Singapore:

[inter alia] Part VI

[Emphasis is ours.]

7.The significance of s 6(3) of the RSIA (as set out in italics above) was that it excluded Part VI of the Malaysian Constitution from our Constitution, and contained within Part VI was art 73(a) which conferred on the Malaysian Parliament extraterritorial powers. Article 73 reads:

In exercising the legislative powers conferred on it by this Constitution -

Parliament may make laws for the whole or any part of the Federation and laws having effect outside as well as within the Federation;

(b) the Legislature of a State may make laws for the whole or any part of that state.

[Emphasis is ours.]

8.Therefore, the learned judge felt compelled to conclude as follows:

81 By s 5, the legislative power previously vested in the Parliament of Malaysia vested in the Parliament of Singapore. By s 6(1), the scope of Parliamentary power was preserved. By section 6(3), certain powers of the Malaysian parliament were expressly not preserved. This included the powers contained in Part VI of the Malaysian constitution, which in turn contains art 73(a) (the extraterritoriality clause). Counsel for the appellant argued that as art 73(a) is clearly an empowering provision, the exclusion of the same empowering provision from our own Constitution leads to the inexorable conclusion that our Parliament is not so empowered.

82 In considering this submission, I have as counterweights in mind the strong presumption of constitutionality which I have already made reference to, and the ancient and honoured doctrine of Parliamentary supremacy. However, the wording of s 6 of the Republic of Singapore Independence Act is clear and unambiguous: `the following provisions of the Constitution of Malaysia shall cease to have effect in Singapore`. Parliament cannot exercise a power which it is expressly provided to have ceased to possess. As these provisions are enshrined in the constitutional documents which it is my sworn duty to protect and uphold, I think there is no other reasonable conclusion than this: that Parliament was not empowered to enact s 37(1) of the Prevention of Corruption Act.

84 I therefore allow this appeal on the basis that s 37(1) is unconstitutional because it purports to be of extraterritorial effect and is therefore ultra vires the powers of the legislature.

9.In brief, the learned judge had reasoned that (a) s 5 of the RSIA vested the legislative powers of the Malaysian Parliament (including the power to legislate extraterritorially) in the Singapore Parliament; (b) s 6(1) preserved that power; (c) s 6(3) took away that power when it omitted Part VI of the Malaysian Constitution (which contains the extraterritorial clause in art 73(a)); and (d) therefore, Parliament had disempowered itself from legislating extraterritorially.

10.By expressing that Part VI (and hence art 73(a)) of the Malaysian Constitution `shall cease to have effect in Singapore`, Parliament could no longer enact extraterritorial laws. Because Parliament had excluded its power of extraterritoriality from the Constitution which is the supreme law in Singapore, it had thereby disabled itself constitutionally from enacting extraterritorial laws. If there had not been this constitutional disability, there would have been nothing to prevent Parliament from validly enacting an extraterritorial provision (such as s 37(1) of the PCA) subsequently. Hence, unless the Constitution is first amended to reinstate Parliament`s power to enact extraterritorial laws, all extraterritorial provisions enacted since 1965 are ultra vires the powers of the legislature.

(b) The issue of ultra vires under question 1

(i) The constitutional development of Singapore

11.With respect, we disagreed with the conclusions of the learned judge. While we conceded that, by s 6(3) of the RSIA, Parliament had expressed that Part VI of the Malaysian Constitution ` shall cease to have effect in Singapore `, we did not think that that should necessarily mean that Parliament had divested itself of its extraterritorial powers.

12.A brief survey of the constitutional development of Singapore would lend weight to what we have just said; it would also have the benefit of setting our present Constitution and the enactment of the relevant statutes in their proper context.

13.It would be recalled that, by the Federation of Malaya Agreement 1948, a new constitution was established with effect from 1 February 1948, establishing a federation consisting of the nine Malay States and Malacca and Penang with a strong central government. Singapore then was not a part of the Federation of Malaya, but remained a separate crown colony on its own.

14.In 1963, the British Government, intending to give up Singapore, North Borneo and Sarawak, began negotiations with the Malayan Government and representatives of the three territories with a view to their joining the Federation. Under the Malaysia Agreement, which was concluded on 9 July 1963, it was agreed that Singapore, North Borneo and Sarawak would join the existing states of the Federation of Malaya to form the Federation of Malaysia.

15.The road to merger was not without opposition. Just six days before the birth of Malaysia, the High Court in Kuala Lumpur was asked in Government of State of Kelantan v Government of the Federation of Malaya [1963] MLJ 355 to declare that the Malaysia Agreement and the Malaysia Act to establish Malaysia were null and void, or alternatively, were not binding on the state of Kelantan. On 11 September 1963, the Kelantan State Government moved that, pending the ultimate disposal of the dispute, the court should restrain the defendants, the Government of the Federation of Malaya and the Prime Minister, from carrying into effect any of the provisions of the Malaysia Act. The application was heard by Chief Justice Thomson himself and dismissed at 5pm on 14 September 1963. In a little more than 24 hours from this historic judgment, Malaysia was born on 16 September 1963. Her Britannic Majesty thereby relinquished her jurisdiction in Singapore, North Borneo and Sarawak. In the process, in 1963, a new State Constitution was granted to Singapore to effect its change in status.

16.However, the absorption of Singapore into the Federation was not destined to last. In 1964, on a July afternoon, the streets of Singapore erupted with such violence that 21 persons were left dead and another 460 injured. This incident marked the beginning of the end of Singapore`s place in Malaysia. There is no necessity for us to trace the political history of this period which is already well documented. It is sufficient to say that, on 7 August 1965, Prime Minister Lee Kuan Yew was informed of Tunku Abdul Rahman`s decision that Singapore should leave the Federation. On 9 August 1965, Singapore`s independence was proclaimed; the short-lived 23-month merger had come to an end.

17.The legal separation of Singapore from the Federation was quickly effected by a series of documents. First, the Malaysian Parliament enacted the...