Exceptions to double jeopardy protection

  • Reflecting On The Law
  • Thursday, 16 Feb 2017

A MALAYSIAN citizen, who was convicted in Canada of sexually assaulting dozens of women in Toronto, served out his 24-year sentence and was then deported to Malaysia. Understandably, there were demands from many concerned Malaysians to act against him in order to prevent any repeat of the heinous crimes.

These calls draw our attention to the constitutional prohibition in Article 7(2) against “double jeopardy”. There is also the fact that the offender’s crimes were committed outside our country and outside the jurisdiction of our courts.

Article 7(2) of the Federal Constitution provides that “a person who has been acquitted or convicted of an offence shall not be tried again for the same offence...” Section 303 of the Criminal Procedure Code contains a similar rule.

This means that no person should be imperilled by subsequent criminal prosecutions if he has already been adjudged to be guilty. Likewise, an acquittal is a permanent bar to a new trial for the same offence on the same set of facts.

So strongly is this rule entrenched in the firmament of criminal justice that even if the law is subsequently amended, even if new evidence comes to light, even if an acquitted person voluntarily makes a confession, or even if defence witnesses recant, the earlier trial cannot be reopened. The verdict in the earlier trial is final for all times to come!

However in life, as in law, no rule is ever absolute. Article 7(2) does not forbid retrial in a number of situations.

Discharge: A discharge does not amount to an acquittal. A discharge results in discontinuation of the trial for a variety of reasons – be it the court’s lack of jurisdiction, the absence of witnesses, the insufficiency of evidence, or the prosecutor’s decision that the public interest will not be served by continuation of the proceedings.

A discharge may also result because the charges are badly framed: Uthayakumar a/l Ponnusamy v DCP Dato’ Dell Akhbar bin Hyder Khan & 12 LG (2003).

Quashing of earlier trial: The rule against double jeopardy does not apply if the previous trial was quashed by a superior court and a re-trial ordered. This is provided for in Article 7(2) and affirmed in the cases of Sau Soo Kim v PP (1975) and Fan Yew Teng v PP (1975).

Different offence: If in the subsequent trial, the accused is tried for a different offence on the same set of facts, there is no violation of the Constitution if the accused could not have been charged with or convicted of that different offence in the court which convicted him first. In Jamali Adnan v PP (1986) it was held that “different offence” means an offence whose ingredients are not the same.

Technical errors: In Re Datuk James Wong Kim Min (1976) the Plaintiff was detained in West Malaysia under a law that applied only in Sarawak. A writ of habeas corpus was issued to order his release. But this release did not bar a subsequent detention order which was properly made out under the correct law.

Appeals: If a person is acquitted and the Prosecutor files an appeal under section 5 of the Court of Judicature (Amendment) Act 1976, there is no double jeopardy.

Preventive detention: In PP v Musa (1970) it was held that if the detainee was previously under administrative detention under the Internal Security Act, there is no bar to a subsequent criminal trial on the same set of facts. Likewise if a person is acquitted by a court of law, there is no bar to a subsequent preventive detention order as in the case of Yeap Hock Seng @Ah Seng v Minister (1975).

Disciplinary proceedings: If the subsequent proceeding is non-criminal in nature and is in a forum different from a criminal court, there is no violation of Article 7(2). Thus, if a person, who has been acquitted or convicted in a criminal court, is subsequently subjected to disciplinary proceedings upon the same facts, there is no double jeopardy: Mohamed Yusoff Samadi v AG (1975). A school teacher was acquitted of outraging the modesty of his pupils but subsequently tried in disciplinary proceedings and dismissed for bringing disrepute to his profession.

Multiplicity of proceedings: Trial in one court on charges also pending in another court does not amount to double jeopardy because the constitutional guarantee is activated only after a person has been acquitted or convicted: Teh Cheng Poh v PP (1979).

Civil proceedings: Imposition of a criminal penalty is no bar to a civil action. Thus if a motorist is convic­ted of criminal negligence, this does not bar a civil action in tort for compensation.

Re-trial: Appellate criminal courts have power to order a new trial: PP v Khai Chin (1979).

None of the above exceptions apply to the returnee from Toronto. He has paid the price for his wrongs and has a right to pick up the shattered pieces of his self-destructed life.

However, to calm public fears the police are keeping him under watch. If there is a reasonable suspicion of any new offence or repeat of the sexual perversions, then our law will permit an arrest and trial. Article 7(2) bars retrial for a charge on which there is already a conviction or an acquittal but every new act of criminality will trigger a new criminal proceeding. The public has nothing to fear.

  • Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at University of Malaya. The views expressed here are entirely the writer’s own.
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Opinion , Shad Faruqi , columnist


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