S EM ES TER

II
2022/2023
LESSON 5
PROHIBITION AGAINST
RETROSPECTIVE
CRIMINAL LAWS &
DOUBLE
JEOPARDY
LEARN IN
G
O UTC O M E
S Understand the concept of
the retrospective criminal laws
and double jeorpardy able to
apply the constiutional
provisions into real problems
Article 7 (1) - protection
retrospective
against criminal
laws
It is unfair to punish a person for doing an act which he
could not have known, at the time he committed it, to be
subject to a pena lty
The legislature should not be permitted to enact laws with
knowledge of who such laws will affect adversely
Two limbs of article 7(1)
LIM B 1
Protection against retrospective creation of offences.

LIM B 2
Protection against retrospective increase in the punishment for existing
offences.

Note: only applicable to criminal offences

Issues If a statute originally provides
for a discretion for the courts
to choose
Substantive or between two forms of
procedural? punishment and then it was
amended to provide for a
mandatory one, removing the
discretionary power - which
law to apply?
Cases on retrospective
procedural law
HAW TUA TAU V PP [1980] 1 MLJ 2
LOH KOOI CHOON V THE
GOVERNMENT OF MALAYSIA
[ 1977] 2 MLJ 187
LIM SING HIAW v PUBLIC
PROSECUTOR [1965] 1 MLJ 85
HAW TUA TAU V PP
[1980] 1 MLJ 2
Facts: A was arrested and charged on two accounts of
murder. Between the period of the charge and trial, the
right of an accused to make unsworn statement from the
dock was taken away by the CPC (Amendment).
The High Court convicted A for the offence and he was
sentenced to death penalty.
Issue: Whether it was constitutional to apply the change in
criminal procedure which came about after the offence
had been committed but before the commencement of the
trial.
 Court of Appeal
• The trial to make unsworn statement from the dock is a right
given to the accused at the ‘time of the trial’.
• Before the trial, the legislature by s186A CPC had expressly
taken away the right of an accused.
• The amendment to the procedure is not void as being
inconsistent with art 7(1).
Privy Council
• "So no amendment to the Constitution is needed to
empower the legislature..................... to enact whatever
laws it thinks appropriate to regulate the procedure to
be followed at the trial of criminal
offences......................; subject only to the limitation
that......... such procedure does not offend against some
fundamental rule of natural justice. It must not be
obviously unfair.“
• A had a choice whether to give the statement or not
 LOH KOOI CHOON V THE GOVERNMENT
OF MALAYSIA [1977] 2 MLJ 187

• Facts: A was arrested under RRE. He had not been produced before
a Magistrate within twenty-four hours of his arrest. He appealed
against the conviction. Before the appeal was heard, the Federal
Constitution was amended by Act A354/76 which provided in effect
that Article 5(4) of the Constitution shall not apply to the arrest or
detention of any person under the existing law relating to restricted
residence and that this amendment shall have effect from Merdeka
Day.
• It was argued that the amendment was unconstitutional.
 Federal Court
• If Parliament retrospectively affects vested rights or pending
proceedings, then it would be the duty of an appellate court to apply
the law prevailing on the date of appeal before it.
• Subject to the constitutional limitation of Article 7 of the
Constitution, to wit, protection against retrospective criminal laws
and repeated trials, Parliament would be within the ambit of its
competence if it deems fit to legislate retrospectively
• Note: It is the right of the legislature to retrospectively give effect to
the constitution – the amendment was valid
 LIM SING HIAW v PUBLIC
PROSECUTOR [1965] 1 MLJ 85
• Facts: A was tried and convicted for unlawful control of a firearm in
contravention of section 57(1) of the Internal Security Act, 1960, and for
consorting with armed persons in contravention of section 58(1) of the
same Act and was sentenced to death.
On appeal it was argued inter alia:
• The trial was a nullity as it was not held before a judge and jury under
the provisions of the Criminal Procedure Code (Cap. 6) but was heard by a
judge alone under the provisions of the Emergency (Criminal Trials)
Regulations, 1964, which came into force after the commission of the
alleged offences but before the commencement of the trial
 Federal Court
• Regulation 4 of the Emergency (Criminal Trials) Regulations, 1964,
deals only with the mode of trial and being purely procedural is
retrospective in its effect.
• There is nothing in it which contravenes article 7(1) of the Federal
Constitution, which prohibits punishment for an act which was not
punishable by law when it was done or made
Limb 2: retrospective
changes to
punishments prior to
sentencing
Issues?
What constitutes a heavier punishment?
Removing discretionary power of the court
to choose between two forms of
punishment?
Whether the amendment merely alter or
affect
procedural matters or matters of the
practice of the courts?
C ases

PP v. HUN PENG KHAI & ORS. &

OTHER CASES [1984] 2 CLJ 290
 PP v MOHAMED ISMAIL [1984] 2
MLJ 219
• Facts: A was charged for an offence of trafficking in a dangerous
drug, to wit, cannabis, in contravention of section 39B(1) of the DDA.
The accused was found guilty.
• On the day when the accused was found guilty, section 39B(1) of the
DDA was amended to provide for the mandatory sentence of death
upon conviction in all cases of trafficking in contravention of the
section. Before the amendment, the Court had the option of
sentencing the accused to death or imprisonment for life.
• Issues
• What is the material date for determining sentence for such offences,
is it the date of the offence or the date of convict
• If the material date was the date of conviction, whether the
amendment was constitutional so far as cases committed before the
date of its coming into force was concerned.
 High Court
• S39B(1) DDA, in the form it now takes is open to only one reasonable
construction, namely that it is the date of conviction which is the
relevant date for purposes of sentencing
• If the section operates retrospectively, is clearly a law which comes
within the striking range of Article 7(1) of the Federal Constitution
and is therefore invalidated so far as cases where the offence was
committed prior to the date of its coming into force are concerned
• The Court therefore has a discretion in the matter of sentence as it is
the subsection in the form it took prior to the amendment which
applies.
 PUBLIC PROSECUTOR v. HUN PENG KHAI &
ORS. & OTHER CASES [1984] 2 CLJ 290

• Facts: A was charged with the offence under DDA and was
transmitted from SC to HC while it was still pending trial before SC.
• The amendment to DDA confer exclusive jurisdiction on HC to try
offences in contravention with S39b of the Act.
• The Amending Act has the effect of taking away the jurisdiction of
SC even in cases pending trial before SC prior to the coming into
force of the amendment.
 High Court
• The provisions of the Dangerous Drugs (Amendment) Act 1983 are
not retrospective by express enactment or by necessary implication
• In the circumstances of the case, the accused persons had a vested
right to trial in the Sessions Court, and ss. 15 and 16 of the
Amending Act in no way deprived them of that right
• Order of Transmission are illegal, void and of no effect; they are
accordingly quashed
• All cases restored to Sessions Court
 Article 7 (2) - D ouble jeopardy
GENERAL PRINCIPLES
First:
A person who has been acquitted of an offence shall not be tried
again for the same offence

Second:
A person who has been convicted of an offence shall not be tried
again for the same offence
Protection against
A UTREFOI
repeated trials S ACQUIT
A person should not be put in
jeopardy twice for the same
offence A UTREFOI
The accused may make a plea S
of ‘autrefois acquit’ or ‘autrefois CONVICT
convict’ as the case may be
A person should not be put in
double jeopardy
 Autrefois acquit Autrefois convict
It is a crimina l la w plea ding.
A plea made by a defendant, indicted Formerly convicted.
for a crime or misdemeanor, that he A plea by a person
has formerly been tried and acquitted indicted for a crime for
of the same offence. which he or she had
To be a bar, the acquittal must have
previously been tried
been by trial, and by the verdict of a
and convicted.
jury on a valid indictment (verdict of a
judge in Malaysia)
There must be an acquittal of the
offence charged in law and in fact.
 S EC TIO SECTION 302
C PC N 30 2 (2)
(1)

S EC TIO N S EC TIO
302 (3) N 30 3
Issues
Whether a conviction
or a cquitta l in the
court is a ba r for
disciplinary
proceeding?
W hether plea of
autrefois acquit or autrefois
convict applies in
preventive detention cases?
Cases
DR CHAN CHOO LIP V MALAYSIAN
MEDICAL COUNCIL, MINISTRY OF
HEALTH MALAYSIA & ANOR [2010] 6
MLJ 574
PALAUTAH SINNAPPAYAN & ANOR
V. TIMBALAN MENTERI DALAM
NEGERI, M ALA YS IA & ORS [2010] 2
CLJ 133
 DR CHAN CHOO LIP V MALAYSIAN MEDICAL COUNCIL,
MINISTRY OF HEALTH MALAYSIA & ANOR - [2010] 6
MLJ 574

• Judgment
• The acquittal by the sessions court of the applicant is not a bar to the
disciplinary proceedings intended to be initiated against him.
• Thus, the acquittal or conviction of any of its member in the court of
law for criminal offences should not, given their supervisory and
regulatory task, be binding on the council.
 Rationale
The Medical Act is designed to regulate the
conduct and practice of its member. The medical
profession being a professional body is required
to maintain a high standard of practice, ethics
and discipline for the protection of the public that
it serves. The Medical council is therefore entitled
to enforce the rules regulating the conduct and
practice of its members in the interest of not just
its members but the public as well.
 PALAUTAH SINNAPPAYAN & ANOR V. TIMBALAN
MENTERI DALAM NEGERI, MALAYSIA & ORS [2010] 2 CLJ
133

• Facts: A were charged at the Sessions Court for an offence of

murder, punishable under s. 304 of the Penal Code, were
subsequently acquitted and discharged.
• They were, however, arrested outside the Sessions Court and taken to
the Police Station where they were detained for a period of 60 days as
provided under the Emergency (Public Order and Prevention of
Crime) Ordinance 1969 (‘Ordinance’).
• Issue: Whether the doctrine of autrefois acquit applied to the
appellants’ case thus rendering the detention orders issued against
them null and void
 Judgment
• The scope and extent of protection enshrined under art. 7(2) of the
FC only apply to criminal offences wherein a person who has been
acquitted or convicted of an offence by the court shall not be tried
again for the same offence.
• It does not apply to preventive detention, more so when the powers
are given under art 149 and 150 of the Federal Constitution.
• The principle of autrefois acquit did not apply to the case.
Where the plea
is not
applicable
FAN YEW TENG V PP
[1975] 2 MLJ 235
YEAP HOCK SENG V
MINISTER OF HOME
AFFAIRS, MALAYSIA [1976]
2 MLJ 279
PP V MUSA [1970] 1 MLJ
101 PP V TEH CHENG POH
[1978] 1 MLJ 68
JAMALI BIN ADNAN V PP
 FAN YEW TENG V PP [1975] 2 MLJ 235

• Facts: A was charged and convicted of the offence. On

appeal, the court quashed the A's conviction on the ground
that his trial at the High Court had not been preceded by a
preliminary enquiry before a magistrate as required by
section 138 of the Criminal Procedure Code and was,
therefore, a nullity.
• The decision of the Federal Court declaring the trial nullity
was confirmed by the Privy Council.
• Subsequently, A was rearrested and charged with the
same offence. This time there was a preliminary enquiry
before his trial in the High Court and he was convicted. A
appeal against the conviction and sentence.
• The issue: the retrial was not valid as the court did not
order a retrial when it declared the earlier trial a nullity.
 Judgment
• As the earlier trial (& conviction) was declared as a
nullity, A is not a person who has been convicted of an
offence within the meaning of article 7(2).
• The retrial did not put him in the situation of double
jeopardy.
• Even there was no order for retrial, but there was in fact
no trial at the first place where the court could neither
convict or acquit A.
• Accordingly, his retrial and conviction were not in
contravention of that clause and, therefore, perfectly
valid.
 YEAP HOCK SENG V MINISTER OF HOME AFFAIRS, MALAYSIA [1975]
2 MLJ 279

• Facts: A was arrested on suspicion of having committed murder. The

preliminary enquiry was fixed but the prosecution sought adjournment
for two times. The prosecution then informed the magistrate that they
were directed by the Deputy PP to ask the court to discharge A and the
magistrate granted the order and discharged A.
• As A walked out of the court-house he was immediately apprehended
and Police Station where the order of detention made against him by
the Minister under section 4(1) of the Emergency (Public Order and
Prevention of Crime) Ordinance, 1969, and the grounds and allegations
of fact were read and explained to and served on him.
 High Court

Article 7(2) of the Constitution does not affect the position

in any way as the discharge of an accused person is not an
acquittal for the purposes of a plea of autrefois acquit
 PP V TEH CHENG POH [1978] 1 MLJ 68

• Facts: A was charged with the offences of possession of a

firearm and of ammunition punishable under s 57 of the ISA
1960.
• A argued that he had also been charged in the Magistrate's
court for robbery and a preliminary inquiry was pending he
could not be charged in the High Court for the offence, as
this would mean he would be in jeopardy twice.
• Held: a person has to be convicted or acquitted before he
could be said to be in double jeopardy
 JAMALI BIN ADNAN V PP [1986] 1 MLJ 162

• Facts: A had been convicted and sentenced in the Sessions

Court on four charges of robbery with a deadly weapon to wit
a revolver. Subsequently he was charged in the High Court for
the offence of being in control, without authority, of the
revolver and ammunition.
• The appellant was found guilty and sentenced to death.
• He pleaded for autrefois convict.
Issue:
Whether A could lawfully be charged again in
the High Court for offences constituted by the
same acts under the Internal Security Act 1960
after he had been tried, convicted and sentenced
by the Sessions Court for the robberies with a
deadly weapon to wit a revolver under sections
392 and 397 of the Penal Code
 Judgment
(1) in order to operate as a bar the appellant must prove
that the second prosecution or trial must be either (a) for
the same offence or (b) on the same facts for any other
offence for which a different
(2) A was not charged with the same offence.
(3) the charges for armed robbery under PC were triable
in the Sessions Court but the Sessions Court was not
competent to hear charges under the ISA which carries
the mandatory death penalty.
Express limitation of
the right S ection
Article 7( 2) 30 2
(4)
“…except where the conviction or
acquittal has been quashed and a retrial CPC
ordered by a court superior to that by
which he was acquitted
or convicted”
 C ases

MOHAMED YUSOFF
SAMADI V AG [1975] 1
MLJ
1
ZAKARIA BIN ABDUL
RAHMAN V KETUA
POLIS NEGARA
MALAYSIA & ANOR
 MOHAMED YUSOFF SAMADI V AG
[1975] 1 MLJ 1

• Facts: P , who was a school teacher, had been charged on five charges of using
criminal force to four girls in his class to outrage their modesty. He was acquitted
on those charges. Subsequently, the Public Service Commission instituted
disciplinary proceedings against the plaintiff with a view to his dismissal. The
plaintiff was charged with five charges that he abused his position as teacher by
outraging the modesty of the same four pupils. He applied for a declaration that
regulation 11 of the Public Service (Disciplinary Proceedings) Regulations, 1970
is ultra vires article 7(2) of the Federal Constitution, as it applies to Singapore,
and that the determination in the Magistrate's Court was a conclusive acquittal
and discharge of the plaintiff which constituted issue estoppel or res judicata,
thus making it improper for the Public Service Commission to proceed on the
same charges
 Judgment
• No principle of law precludes a man who has been acquitted or
convicted upon a set of facts alleged to constitute an offence being
subsequently subjected upon the same facts to disciplinary action by
a domestic tribunal
• It was not improper for the Public Service Commission to institute
disciplinary proceedings in this case as the exercise by the Public
Service Commission of its powers is not by way of punishment but
rather to enforce a high standard of propriety and professional
conduct
 ZAKARIA BIN ABDUL RAHMAN V KETUA POLIS
NEGARA MALAYSIA & ANOR [2001] 3 MLJ 385

• Facts: P was brought to the disciplinary proceeding for acting in

contravention with the general order (he wanted to may one woman as
the second wife). P was found guilty, fined and reprimanded. P
proceeded to marry the women and the second disciplinary proceeding
was taken against him.
• P was charged with two breaches of discipline, namely for conducting
himself in such a manner as to bring the public service into disrepute
under general order and for insubordination by committing polygamy
under general order.
• P was found guilty of both charges and was dismissed from the police.
 • Issue
• Whether disciplinary action could be taken against any one for
the second time based on the same facts after he had been
convicted or acquitted in the earlier disciplinary proceedings,
and whether the holding that one of the charges in the second
proceedings was invalid would not vitiate the punishment
imposed on the plaintiff since the punishment was in respect of
two separate charges
 Judgment
• The dismissal of public servant is governed by the code enacted under
art 132(2) of the Federal Constitution.
• The doctrine of autrefois convict and acquit is applicable to disciplinary
proceedings under a statutory code by which a profession is governed,
was apt to apply to the present case.
• The first and second proceeding were in respect of the same conduct
and therefore it amounted to double jeopardy.