APRIL 2023 | ISSUE 3 | JUDGEMENT explore the justice of the case L E G A L I N S I D E R SPECIAL THANKS TO Pi007 /K10 MEMBERS: An w ar Hak imi Bin Mohd Yaacob (2023450364) Nur Syuhada Binti Mohamad Sabri (2023852994 Andriana Ari sya E l i zebeth Binti Az i zul Anuar (2023810634) Nur Fasya Qi s tina Binti Harun (2023668076) Nurul I z zah Afiera Binti Ahmad Zuraimi (2023482842) Hanan Sofea Bt Ahmad Zak i (2023645552) SPECIAL EDITION Can a person convicted of an offence be tried again for the same offence? Is Article 7 a shield against retroactive injustices? TRUTH BE TOLD
Illustration: if A does an Act which is a crime punishable with 3 months imprisonment and after that Parliament legislate to make it 6 months impeisonment, the new punishment cannot apply to A. Second Limb: No person shall suffer greater for punishment for an offence than was prescribed by law at the time it was committed. It only applies to persons who commit that crime after that new law has come into force. INTRODUCTION Article 7: No Restrospective Criminal Laws or Increase in Punishment and no Repetition of Criminal Act First Limb: No person shall be punished for an act or omission which was not punishable by law when it was done or made. Illustration: if A does an act which is not a crime and after that, Parliament legislate to make a crime , then the new law does not apply to A. The new law only applies to criminal acts affer it has come into force (after it has been gazetted by law).
Article 7 of Federal Constitution Protection against retrospective criminal laws and repeated trials 7. (1) No person shall be penalised for an act or omission that was not punishable by law when it was done or created, and no person shall incur more penalty for an offence than was required by law at the time it was committed. (2) A person who has been acquitted or convicted of a crime may not be tried again for the same offence unless the conviction or acquittal is overturned and a retrial is ordered by a court higher than the one in which he was acquitted or convicted. CAS E 1: MOHD ROZIMAN BIN SAAIDON & ANOR V PUBL IC PROS ECUTOR, [ 2016] 9 ML J 20 Whether the amendment in this S31A(1AA) of the Dangerous Drugs (Amendment) Act 2014 is retrospective or prospective? The applicants, Mohd Roziman and others were arrested on 13 September 2013 and charged before the Magistrates Court Kulai, Johor Darul Takzim under S15(1)(a) of the Dangerous Drugs Act 1952 on 4 March 2013 respectively. The examination and inspection on the urine samples of the applicants were followed through by the science officer. On 25 July 2013, the prosecution applied to the magistrates court for an order to have the charges against the applicants respectively be discharged not amounting to an acquittal to which the court ordered that the charges against the applicants be Dismissal Not Amounting to Acquittal (DNAA).. The Court of Appeal held that the urine specimen examination and analysis under S31A (1AA) of the Dangerous Drugs (Amended) Act 2014 must be conducted by a medical officer as defined under the section which also includes the chemist. A science officer has no jurisdiction to conduct examination and inspection of the urine specimen. On 10 September 2014 the applicants were recharged for the same offence under S15(1)(a) of the DDA 1952 respectively. The prosecution intends to rely on the newly amended S31A(1AA) in respect of the urine test report of the applicants brought by the science officer. The learned counsel for the applicants submitted that the Amended DDA 2014 is not retrospective which means it is not directed to the past as the law is only to be effective on 15 February 2014. In the case of Mohd Roziman bin Saaidon & Anor v Public Prosecutor, [2016] 9 MLJ 20, Article 7 (1) of the Federal Constitution in which there is a protection for retrospective criminal laws and it is applicable since the offence happened on 13 September 2012 which was before s 31A(1AA) of the Dangerous Drug Amendment 2014 came into force and therefore is inapplicable to the offence. This clearly shows that the offence happened before the new amendment came into force. It is stated by Article 7(1) that no persons shall be punished for an act or omission that had no punishment during the time the omission happened. Even though the action of the appellants would legally be allowed to be tested by a science officer on 15 February 2014 although, the act itself was done on 13 September 2012 and therefore can only be tested by a medical officer since that was what the act had stated at the time. Thus, Article 7(1) is applicable to this case since it protects the appellants from retrospective criminal laws. FACTS OF THE CASE ISSUE APPLICATION L A W
Article 7 provides that: (1) No one shall be penalised for an act or omission that was not illegal at the time it was done or made, and no one shall be punished more severely than the law stipulated at the time the offence was committed. FACTS OF THE CASE The appellant, Nordin Yusmadi was convicted on 24 February 1994 by the Sessions Court Kuala Lumpur of a statutory rape of an underage girl, who was then 15 years 11 months old, which is an offence under S376 of the Penal Code. The appellant who was 19 years old during the time of the case, was a first offender and he had pleaded guilty to the charge. Due to his age, the learned sessions court judge has called for a probation report on the appellant to be detained in Henry Gurney School until he reaches the age of 21 years old. The appellant was accordingly sent to the juvenile school and he served his detention there for two years until he reached 21 years old and was then released 16 January 1995. During that time, the Public Prosecutor who was in charge was dissatisfied with the sentence given by the court, where the Prosecutor then filed a notice of appeal to the High Court on 3rd March 1994. However, the appeal was never heard immediately as it should have been. The appeal was heard on 27th November 1996 which was the date the appellant had been released from the Henry Gurney School. The judges allowed the appeal and set aside the order of the sessions court and imposed the mandatory minimum term of imprisonment of five years provided by S376 of Penal Code. The imprisonment term was to take effect on 27th November 1995, which was after the appellant had served the order of detention. The judge was of the view that pursuant to the mandatory provision of S376, the session judge was wrong in the law to impose any other sentence, and that S40 of the Act was not applicable. L A W Applying to the case, a person shall not be punished of an act of omission twice under the same circumstance. This statement is strengthened by the provision of Article 7(1) of Federal Constitution, which mentions that no person shall be punished for an act or omission that was not illegal at the time it was done or made, and no one should be punished more severely than the law stipulated at the time the offence was committed. Even though the appellant committed a serious crime, where he committed a statutory rape on a 15 years 11 months old girl which the appellant was 19 years old by the time the he committed the offence. Since the appellant was under 21 years old when the trial happened, the court decided to sent him to Henry Gurney School for two years until he turned 21 years old. By the time the appeal was heard by the court, the appellant had already served the order of detention and out from Henry Gurney School. Therefore, in imposing the five years’ imprisonment to take effect from 27 November 1995 after the appellant had served the order of detention, the appellant had, more or less, been mandated with two sets of sentences from a conviction upon one charge. It is said that the appellant had suffered a greater punishment for an offence than was prescribed by law under Section 40 of Juvenile Courts Act 1947. As the appellant had already served the order of detention, therefore the sanction of S376 of Penal Code cannot be applied anymore as it will be charged under the same offence where the appellant will suffer a penalty more than he should have been charged with. Hence, in accordance to Article 7(1) of Federal Constitution, no person shall be punished with a greater punishment for an offence than was prescribed by law at the time it was committed. APPLICATION C O N C L U S I O N In conclusion, no person shall be punished for an act or omission that was not illegal at the time it was done or made, and no one should be punished more severely than the law stipulated at the time the offence was committed. As the appellant had already served the order of imprisonment, the sanction of S376 of the Penal Code could no longer be imposed because it would be charged under the same offence, resulting in a penalty greater than what the appellant should have faced. As a result, according to Article 7(1) of the Federal Constitution, no individual shall be punished more severely for an offence than was prescribed by law at the time it was committed. MOHD ROZIMAN BIN SAAIDON & ANOR REFERENCES NORDIN YUSMADI BIN YUSOFF V PUBLI C V PUBLI C PROSE CUTOR, [ 2016] 9 MLJ 20. ROSE CUTOR [ 1997 ] 3 MLJ 754. CAS E 2 : NORDIN YUSMADI BIN YUSOF F V PUBL IC PROS ECUTOR [1 9 9 7 ] 3 ML J 7 54 ISSUE Whether the session judge was justified in exercising her discretion under S40 of Juvenile Courts Act 1947?