Issue:

1. Whether Justin who has been charged three times has immunity and protected against double
jeopardy under Article 7(2) of the Federal Constitution?

2. Whether Justin can plea for autrefois convict?

Law:

The Federal Constitution incorporates protection against double jeopardy by including it as a

fundamental right under Article 7(2) which provides that ‘’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.’’ The basis of this provision is that all individuals are immune from being tried again for
the same offence. No one should be jeopardised by further criminal charges if he or she has already
been tried in a criminal court and found guilty of the offence. Similarly, an acquittal is a permanent
impediment to a new trial for the same offence based on the same facts.

Section 302 of the Criminal Procedure Code also provides similar context as Article 7(2) of the
Constitution, which is a person who once convicted or acquitted not to be tried again for the same
offence. Section 302(1) of CPC states that “a person who has been tried by a Court of competent
jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or
acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts
for any other offence for which a different charge from the one made against him might have been
made under section 166 or for which he might have been convicted under section 167.

Even in the common law system, this principle has been widely applied. This can be illustrated in the
case of R v Miles [1980] 24 QBD 423, where the court stated that "where a person has been
convicted of a crime by a court of competent jurisdiction, the conviction is a complete bar to all further
criminal proceedings for the same offence."

From these provisions, there are certain elements that need to be satisfied in order to invoke the plea
of autrefois convict. The first element is there must be a valid trial. The accused must prove that he
was charged with the criminal offence, that evidence was presented against him, that he was given
the opportunity to defend himself, and that the court made a decision against him or acquitted him.

Next, the second element is the previous trial should have been by a court of competent jurisdiction.
This is due to the fact that a trial by a court with no jurisdiction in the case is void ab initio, and if the
accused is acquitted, he may be retried for the same offence. In the case of Uthaykumar a/l
Ponnusamy v PP [2003]. A discharge does not absolve the accused of all charges because it does
not constitute a judgement of not guilty. Furthermore, it does not exclude him from being re-arrested
and retried on a similar crime. Acquittal is a comprehensive defence against future similar charges
based on the same set of facts.
The third element is the result of the previous trial should have been either a conviction or an
acquittal. Proof of a final verdict of acquittal or conviction is required so that the accused can invoke
Section 302 of the Criminal Procedure Code to prevent a second trial for the same offence.

The last element is the previous and subsequent offences must be the same. The accused cannot be
tried again for an offence for which he was convicted in a previous trial. As illustrated in Jamali
Adnan v PP [1986], the offence of which the accused has been acquitted and is charged must be the
same ingredients.

Application:

By applying to the current situation, Justin was found guilty of two counts of selling morphine that was
not in or from the original stamped package, one for each different transaction on different days. He
was also found guilty on one charge of selling morphine "not in pursuance of a written order of the
purchaser.'' For each count, he was sentenced to five years in prison and an RM 5,000 fine. He is
displeased with the verdict because he believed the entire offence was one transaction and that he
should only be punished for one charge and not three.

In order for him to invoke the plea of autrefois convict, he needs to fulfil of its four elements. For the
first three elements, Justin must prove the existence of valid trial, previous trial should have been by a
court of competent jurisdiction and also the result of the previous trial should have been either a
conviction or an acquittal. Justin in the current situation was convicted of three charges in a single
trial, and there is no proof that he was previously tried on the same charge. Thus, there is no
conviction and acquittal in the previous trial. Therefore, the first three elements are not fulfilled.
Moving on, for the last element which is the previous and subsequent offences must be the same, we
can see that the second offence that he was charged is different from the first charge due to the fact
that the weight of the morphine on the first and second day was different even though the facts of the
case might be similar. For Justin’s third charge which is selling morphine ''not in pursuance of a
written order of the purchaser,” if we compare to the prior two charges, Justin's third charge can be
regarded a different offence as the ingredients and set of facts between the charges are different.
Thus, the rule of double jeopardy may be not applicable in Justin’s situation.

Conclusion:

In summation, Justin has no immunity against double jeopardy under Article7(2) of the Federal
Constitution for the three charges made against him. He cannot invoke the plea of autrefois convict as
he did not satisfy all the requirements.