Case Law

Public Prosecutor v Taw Cheng Kong
Public Prosecutor v Taw Cheng Kong
[1998] 2 SLR 410; [1998] SGCA 37

  

Suit No:    Cr Ref 1/1998
Decision Date:    22 May 1998
Court:    Court of Appeal
Coram:    Goh Joon Seng J, L P Thean JA, Yong Pung How CJ
Counsel:    Chan Sek Keong SC (Attorney General and Public Prosecutor) and Muhd Hidhir Majid (Deputy Public Prosecutor) for the applicant, Michael Khoo SC and Josephine Low (Michael Khoo & Partners) for the respondent


Judgment

[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.]

Yong Pung How CJ:

Background

1       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.

The two questions

4       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 —

(a)   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 Constitution and Malaysia (Singapore Amendment) Act. For our narration purposes, we would borrow FA Chua J’s judgment in Sng Hung Meng v Public Utilities Board [1965–1968] SLR 107 wherein the learned judge set out the following at p 109:

By an agreement dated 7 August 1965 (The Independence of Singapore Agreement 1965) made between the Government of Malaysia and the Government of Singapore it was agreed that ‘Singapore shall cease to be a state of Malaysia on 9 August 1965, (hereinafter referred to as Singapore Day) and shall become an independent and sovereign state separate from and independent of Malaysia.’ Article VI of the agreement provided that ‘The Government of Malaysia will take such steps as may be appropriate and available to them to secure the enactment by the Parliament of Malaysia of an Act in the form set out in Annex B to this agreement and will ensure that it is made operative as from Singapore Day, providing for the relinquishment of sovereignty and jurisdiction of the Government of Malaysia in respect of Singapore so that the said sovereignty and jurisdiction shall on such relinquishment vest in the Government of Singapore in accordance with this agreement and the constitutional instruments annexed.’

         In accordance with the agreement of 7 August, the Malaysian Parliament on 9 August 1965, enacted the Constitution of Malaysia (Singapore Amendment) Act 1965, (hereinafter referred to as the Malaysia Act 1965) whereby Singapore ceased to be a state of Malaysia on 9 August 1965 (Singapore Day) and became an independent and sovereign state and nation separate from and independent of Malaysia.

As apparent, the Constitution of Malaysia (Singapore Amendment) Act 1965 was intended to transfer and vest in Singapore the jurisdiction and executive authority of the Yang di-Pertuan Agong and the legislative powers of the Malaysian Parliament to make laws for Singapore (see ss 3, 4, 5 and 7 thereof). However, we pause here to note that s 5 transferred the legislative powers of the Malaysian Parliament to make laws for Singapore not to the Legislature of Singapore but the Government of Singapore.

18     Next, there was the Constitution of Singapore (Amendment) Act passed by the Singapore Parliament on 22 December 1965, but dated retrospectively to 9 August 1965 (Singapore Day). This enactment, inter alia, changed the procedure required for constitutional amendment.

19     Finally, there was the Republic of Singapore Independence Act of 1965 (RSIA) which was passed immediately after the Constitution of Singapore  (Amendment Act) on the same day. The RSIA, together with the Constitution of Singapore (Amendment) Act, collectively completed the formalities consequent upon the assumption of independence by Singapore.

20     The Constitution of Singapore (Amendment) Act, the provisions of the Federal Constitution of Malaysia as made applicable by the RSIA and the 1963 State Constitution of Singapore (and its amendments) together formed the new Constitution of the Republic of Singapore.

(ii) Transfer of legislative powers

21     Turning now to the validity of extraterritoriality in s 37(1) of the PCA, it would be helpful at the start to highlight that neither party before us disputed that the Malaysian legislature possessed extraterritorial competence, both before and after Singapore Day.

22     Counsel for the respondent, however, argued that the Malaysian Parliament possessed extraterritorial powers only because of art 73(a), a proposition derived from his reading of the Malaysian and Indian Constitutions. The same powers could not be implied for Parliament despite Singapore’s sovereign status in 1965. This was because Parliament in 1965 had deliberately elected to adapt the State Constitution of Singapore of 1963 (which did not contain powers of extraterritoriality) as the basis for its new Constitution. And, in providing for the continuance of certain provisions of the Malaysian Constitution under s 6(1) of the RSIA, the empowering provision relating to extraterritoriality in art 73(a) was expressly excluded by s 6(3) of the same Act. Parliament therefore continued not to have powers of extraterritoriality, even though this fetter could have been removed by either adopting art 73(a) with modification or by enacting an empowering provision in the new Constitution. Hence, Parliament had intentionally chosen not to vest itself with extraterritorial powers when Singapore became independent.

23     The Attorney General, on the other hand, contended as follows: (a) Parliament had plenary legislative powers on Singapore Day, as an attribute of Singapore’s sovereignty; (b) s 5 of the RSIA also vested Parliament with plenary powers of legislation. These powers included the power to enact extraterritorial laws; and (c) s 6 of the RSIA, whatever its legislative effect was, did not affect the operation of s 5 of the RSIA. Section 6(1) had continued in force in Singapore certain provisions of the Malaysian Constitution, but s 5 was not such a provision. Hence, s 6(3) could not have excluded s 5, and its exclusion of art 73(a) was irrelevant; (d) alternatively and in any event, art 73(a) was not an empowering clause.

24     For convenience, we shall deal with the Attorney General’s alternate submission first before proceeding to his main argument. It was contended that art 73(a) of the Malaysian Constitution was not an empowering provision to begin with for the following reasons. First, the marginal note to art 73 states, ‘Extent of Federal and State laws’. Then, the relevant chapter states, ‘Distribution of  legislative powers’. Thus, on the face of it, these words suggested that art 73(a) was not an empowering provision which conferred extraterritorial power; it merely regulated the ‘relations between the Federation and the States’ which incidentally was also the title of Part VI. Second, the opening words to art 73(a), ‘In exercising the legislative powers conferred on it by this Constitution …’, already presupposed that extraterritorial powers had been conferred. It followed that, whatever powers of extraterritoriality which the Malaysian Parliament had, such powers must have come from other provisions. In this respect, we were referred to art 44 of the Malaysian Constitution which dealt with the constitution of the Malaysian Parliament. Third, art 73(a) states that ‘Parliament may make laws … having effect outside as well as within the Federation’. So, if it was an empowering provision as to extraterritoriality, its exclusion also correspondingly meant that Parliament in Singapore was denied the power to legislate within Singapore, a result which led to utter absurdity. Such a consequence, however, flowed from the language of art 73(a) itself.

25     Therefore, art 73(a) could not have conferred any extraterritorial power; and later, in 1965, s 6(3) of the RSIA merely removed provisions from the Malaysian Constitution which were no longer applicable to a unitary state. If this argument was right, it followed that s 6(3) did not disempower Parliament of its extraterritorial powers at all since it was not even empowering in the first place. The result was that this whole argument about the disempowering effect of s 6(3) would be a non-sequitur.

26     We were mindful of the Attorney General’s highly persuasive submissions which would have entailed this Court making a pronouncement on the scope and effect of art 73(a), a Malaysian constitutional provision, as to whether it was empowering in the first place. However, with respect, we were of the view that it was unnecessary to take this further step since there were sufficient grounds before us to dispose of the matter conclusively. But had it been necessary to do so, we would have been of the opinion that the Attorney General came to the right conclusion. We turn now to what we thought was the crux of the matter.

27     As a preliminary question, we had asked ourselves why it was even necessary for there to be empowering provisions as to extraterritoriality in the Constitutions of India and Malaysia if they are sovereign states which presumably must have plenary powers. If counsel for the respondent was correct in his view that the relevant provisions were empowering (and we are not saying he was), we could only speculate the reason that it might have been because it was previously thought that colonial legislatures were incompetent to enact extraterritorial laws: see Macleod v A-G for New South Wales [1891] AC 455. Therefore, upon independence, the extraterritorial provisions were inserted to dispel any doubts over the legislative capacity of the respective legislatures. If that was the reason, then we venture to say that the insertions were unnecessary, especially when seen in the light of the decision in Union Steamship Co of Australia Pty Ltd v King [1982] ALR 43. As the Attorney General pointed out, that case stood for the established principle that a dominion or even a colony had power to make laws  which operate extraterritorially within the limits of its enumerated legislative subjects. Hence, the case was a fortiori for a sovereign state.

28     Whatever the reasons might be for there to be extraterritorial provisions, we did not think that there could be any doubt that Malaysia, being a sovereign nation, possessed full plenary powers. The same, we thought, could be said of India, and we would just refer to a passage by the Indian Supreme Court in the case of Mobarik Ali Ahmed v State of Bombay AIR 1957 SC 857 at p 870 to bring home the point:

Undoubtedly some of [the cases] seem to support the view pressed before us on behalf of the appellant that criminal jurisdiction cannot extend to foreigners outside the State. These, however, are decisions rendered at a time when the competence of the Indian Legislature was considered somewhat limited, under the influence of the decisions like those in Macleod’s case [1891] AC 455, in spite of the decision in R v Burah (1878) 3 AC 889.

         However that may be these concepts are no longer tenable after India became a dominion by the Indian Independence Act of 1947 and after it became an independent free sovereign republic under the present Constitution.

29     Returning to Singapore’s position, we begin by stating that our constitutional experience was unique as evident from the earlier narration. On 9 August 1965, there was only one written law providing for the government of Singapore, and that was the 1963 State Constitution; the other two constitutional enactments being only passed on 22 December 1965 (although dated retrospectively to Singapore Day). In other words, there was a hiatus in the constitutional law of Singapore between 9 August and 22 December 1965. How then did Parliament become vested with legislative powers?

30     The Attorney General’s view, and we agreed with him, was that, when Singapore became independent on 9 August 1965, it acquired the attributes of sovereignty. The inherent nature of being an independent free sovereign republic, in our view, meant that Parliament could pass a law to regulate the rights and liabilities between persons in Singapore or, for that matter, anywhere else. The laws which Parliament had enacted would be perfectly valid in Singapore and would be given effect to by local courts as far as they could. In this sense, on the assumption of independence, Parliament in Singapore had plenary power, and if it chose to, it could also empower the local courts to punish any person present in its territories for having done physical acts wherever the acts were done and wherever their consequences took effect. Parliament’s power, however, would have no legal effect in other countries, except to the extent that those countries permit it. Thus, the political fact of Singapore’s independence on 9 August 1965 meant that Parliament possessed unlimited legislative powers. It had full plenary powers of legislation, including the power to enact extraterritorial laws, however limited the scope of its legislative powers might have been under the 1963 State Constitution.

31     On 22 December 1965, Parliament enacted the Constitution of Singapore (Amendment) Act and the RSIA with retrospective effect to Singapore Day. In  particular, it seemed to us that there were three main reasons for enacting the RSIA. First, it was to ensure that there was no hiatus in the written laws of Singapore; second, the passing of s 5 of the RSIA was to pass the legislative powers of the Malaysian Parliament to the Parliament in Singapore so as to avoid any doubts over the extent of its legislative powers; and third, it was to enact a Constitution for Singapore, incorporating certain fundamental rights which, together with the State Constitution and Constitution of Singapore (Amendment) Act, could be put into one simple document.

32     However, where did Parliament obtain its power to enact the Constitution of Singapore (Amendment) Act and the RSIA? The only possible answer, it appeared, was in its exercise of its plenary legislative powers as the legislature of an independent and sovereign state (s 5 of the Constitution of Malaysia (Singapore Amendment) Act 1965 having failed to do so; see¶17 above). Thus, it was the political fact of Singapore’s independence and sovereignty that had the consequence of vesting the Legislative Assembly of Singapore with plenary powers on Singapore Day.

33     The above view was supported to some degree by the case of Sng Hung Meng v Public Utilities Board (supra) in which FA Chua J held that, on and after Singapore Day, any writ of summons issued in Singapore must be issued in the name of the Yang di-Pertuan Negara, and not the Yang di-Pertuan Agong. He stated as follows at pp 109

When one looks at the writ of summons in this case one sees at once that it is a foreign sovereign who is commanding the defendants to enter appearance within eight days if they wish to dispute the plaintiff’s claim. Everyone knows that a foreign sovereign cannot issue a command here. The plaintiff however says that in law a Singapore writ can be issued in the name of the Yang di-Pertuan Agong.

         Counsel for the plaintiff submits that by virtue of s 7 and s 8 of the Malaysia Act 196[5], the writ must be issued in accordance with s 7(1) of the Courts of Judicature Act and until the legislature of Singapore makes other provisions the writ is issued in the name of the Yang di-Pertuan Agong. This argument it seems to me ignores the fact (1) that by s 6 of the Malaysia Act the Yang di-Pertuan Agong had on Singapore Day ceased to be the Supreme Head of Singapore and he has relinquished and transferred his sovereignty and jurisdiction and power and authority executive or otherwise in respect of Singapore to the Yang di-Pertuan Negara, the head of state of Singapore; (2) that the High Court here has ceased to be a High Court of the Federation of Malaysia in Singapore and is now the High Court of the State of Singapore.

         I am of the view that by virtue of s 6 of the Malaysia Act the writ of summons must be issued in the name of the Yang di-Pertuan Negara, the Head of State of Singapore.

… I think [the writ of summons] is a nullity.

Essentially, the High Court had held that the political fact of Singapore’s independence and sovereignty (as confirmed by the Constitution of Malaysia (Singapore Amendment) Act) required the courts of Singapore to interpret the laws of Singapore to be in conformity with that status. This reasoning applied equally to determining the scope of the legislative powers of Parliament in the absence of any written law.

34     On appeal, FA Chua J’s decision was affirmed, although the Federal Court preferred to base its ratio on the effect of the RSIA and accepted, inter alia, the legislative effect of s 5 in unequivocal terms. The court held at p 112: 

[I]t is a fundamental rule when construing a statute that the statute must be looked at as a whole and looking at the Republic of Singapore Independence Act 1965 it is my opinion clear that the legislature intended and so enacted that all the attributes that go with the status of a sovereign and independent country in so far as executive and legislative powers and the exercise thereof are concerned have from 9 August 1965 been divested from those exercising them before that day and on and from that day been vested in the head of state, the executive and the legislature of Singapore. [Emphasis is ours.]

35     The consequence of acquiring the attributes of sovereignty was that Parliament became fully competent and capable of enacting the RSIA despite the hiatus in constitutional law between 9 August and 22 December 1965. But what was also significant, as we mentioned earlier, was that in passing the RSIA, Parliament took the precaution of vesting the plenary legislative powers of the Malaysian Parliament in the Singapore Parliament under s 5 so as to avoid any doubt about its legislative powers.

36     The preamble to the RSIA states:

An Act to make provision for the Government of Singapore consequent on her becoming an independent and sovereign republic separate from and independent of Malaysia.

Section 5 of the RSIA then states:

The legislative powers of the Yang di-Pertuan Agong and of the Parliament of Malaysia shall on Singapore Day cease to extend to Singapore and shall be transferred so as to vest in the Head of State and in the Legislature of Singapore respectively.  

37     Therefore, under s 5 of the RSIA, all plenary legislative powers previously possessed by the Malaysian Parliament (which must also necessarily include the power to legislate extraterritorially) ceased to extend to Singapore and were transferred to and vested in the Singapore Parliament instead.

38     However, the crucial question was whether s 6 of the RSIA had proceeded to divest Parliament of its extraterritorial powers which were transferred and vested under s 5. Using an extreme example, if s 6 had stated that, under the Singapore Constitution, Parliament shall not have the power to enact extraterritorial laws, then that would clearly disempower Parliament of its extraterritorial competence. But, s 6 was obviously not of such effect.

39     Indeed, when one turns to s 6, it is clear that it was enacted to preserve certain provisions of the Constitution of Malaysia, subject to such modifications, adaptations and qualifications and exceptions as might be necessary to bring them into conformity with the independent status of Singapore upon separation from Malaysia: see s 6(1).

40     But, s 6 also excluded certain provisions of the Malaysian Constitution, and provisions under Part VI were amongst them: see s 6(3). This should come as no surprise. The entire Part VI (divided into seven chapters) of the Malaysian Constitution, which was titled ‘Relations Between The Federation And The States’, had contained technical provisions which must have been of considerable importance to federal ministers on the one hand and to State Mentris Besar and Chief Ministers on the other. Neither the Federal government nor any State government could exist in a vacuum for their paths invariably cross. On its plain reading, Part VI would thus appear to regulate what each could or could not do, and what it might do after consultation with the other or indeed only with consent of the other. Hence, following Singapore’s departure from the Federation, there was no reason to preserve Part VI which dealt with, inter alia, the distribution of legislative powers, the distribution of executive powers, the distribution of financial burdens, land and national development within the Federation.

41     Since art 73(a) in Part VI states that the Malaysian Parliament ‘may make laws for the whole or any part of the Federation and laws having effect outside as well as within the Federation’, this provision must naturally cease to have effect in Singapore upon independence. Quite rightly, as the Attorney General pointed out, the provision was inapplicable to a unitary state. There was no longer any need for art 73(a) in our Constitution, or indeed the entire Part VI, which was consequently excluded by s 6(3). Such a legislative approach was thereby consistent with the newly independent status of Singapore that had to modify and adapt the Malaysian Constitution and the 1963 State Constitution for its own use. Those irrelevant parts of the Malaysian Constitution were therefore excluded, while the relevant parts were retained where necessary with the appropriate changes.

42     Viewed within the above context, we concluded that s 6 could not have disempowered Parliament because (a) Parliament did not have to depend on any express conferment of extraterritorial powers to begin with, since plenary powers of the Malaysian Legislature had already been transferred to it under s 5; and (b) s 6 was not concerned with the transfer and vesting of legislative powers like in s 5; it was merely concerned with provisions in the Malaysian Constitution which were either preserved or excluded because Parliament in 1965 did not have time to enact a new Constitution. That is why the marginal note to s 6 states, ‘Continuance in force of provisions of the Constitution of Malaysia and exercise of powers thereunder’. Whatever the legislative effect of s 6, it obviously could not have affected s 5 which was clearly not a provision of the Malaysian Constitution. Accordingly, the exclusion of Art 73(a) by s 6(3) was irrelevant to the issue of ultra vires in that it could not have affected the plenary powers (including extraterritorial competence) which Parliament had been legally vested with under s 5.

43          Consequently, the result we reached was just the opposite of what was decided in the magistrate’s appeal. Parliament had never divested itself of extraterritorial competence. The extraterritorial provision in s 37(1) of the PCA  was therefore not ultra vires the powers of the legislature. It was valid so long as it did not offend the Constitution. This brought us to the second question posed before this court: whether s 37(1) contravened the equality provision in Art 12(1) of the Constitution.

Whether s 37(1) of the PCA was inconsistent with Art 12(1) of the Constitution

(a) The decision in the magistrate’s appeal

44 The learned judge had concluded that s 37(1) of the PCA was in contravention of art 12(1) of the Constitution which states:

(1)   All persons are equal before the law and entitled to the equal protection of the law.

(2)   Except as expressly authorized by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment. [Emphasis is ours.]

45     Stemming from this contravention, s 37(1) was void because art 4 of the Constitution states:

This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

46     The logical flow of the learned judge’s reasoning in reaching his decision was as follows. First, the scope of art 12 was to guard against various forms of arbitrariness. The test to be applied was to ask if the law was discriminatory; if it was, then one must ask whether the discrimination was based on intelligible differentia; whether persons falling in the same class were treated equally; and whether the basis of discrimination would bear a reasonable relation to the object of the statute. For the latter inquiry, one must ascertain the object of the statute and whether the basis of discrimination was a reasonable means of achieving the object.

47     Second, by applying the test to the facts, the question became whether the decision to discriminate against citizens of Singapore in offences of corruption bore a reasonable relationship or rational nexus to the object of the PCA. If the PCA was given an extraterritorial dimension in 1966 under s 31A (as it then was), the natural inference was that the objective of a corruption-free Singapore was being frustrated by acts of corruption taking place outside the territorial boundaries of Singapore.

48     The learned judge accepted that the prosecutor had validly pointed out that, where corruption was concerned, especially in a small country like Singapore, strict territorial limits would be insufficient to address potential mischief. If the scope of the Act was territorial, then its provisions were easily circumvented by a trip outside Singapore for the purpose of the receipt of funds, or an agreement to pay the funds into an overseas bank account. 

49     Then here was the crux: in seeking to address this lacuna, Parliament’s classification of persons on the basis of citizenship was both over-inclusive and under-inclusive. It was over-inclusive because the net cast by the legislature would catch persons not contemplated by the Act (eg a Singapore citizen who is a foreign permanent resident, employed in the foreign country by the foreign government, receiving a bribe paid in foreign currency by a foreign payor would be caught by the PCA). It was under-inclusive because it failed to catch persons falling within the mischief sought to be addressed (eg a Singaporean permanent resident or foreigner working for the Singapore government who agreed to take a short trip outside Singapore to receive a bribe in Singapore dollars in relation to an act he would then do in Singapore would not be caught by the PCA). The provision in s 37(1) therefore failed to prosecute those cases in which the threat to Singapore was more obvious and direct. Citizenship was thus not a useful criteria for determining guilt.

50     Finally, the learned judge concluded that the ability of a discriminatory provision to achieve its objective was a paramount concern of the court. If the discrimination fell short of achieving the objective, the reasonableness of the classification was insufficient. The classification must be such that an ordinary and reasonable citizen could appreciate the necessity of the discrimination and perceive that the classification was not unjust. In this regard, the basis of classification (citizenship) was an inadequate means of achieving the objective. Although the objective was noble, it was aspired to by unconstitutional means.

51     In essence, the learned judge reasoned that the criteria of citizenship used for the discrimination in s 37(1) was neither rational nor reasonable, and it fell short of achieving its objective, thereby offending the equality provision of the Constitution which rendered s 37(1) void under art 4.

(b) The issue of the constitutionality of s 37 under question 2

(i) Concept of equality

52     Our equality provision is found in art 12 under Part IV of the Constitution which also enshrines all our fundamental liberties. Article 12(1) is similar to art 8(1) of the Malaysian Constitution. Both state that ‘All persons are equal before the law and entitled to the equal protection of the law.’ This concept is not new, being part of the wider doctrine of the rule of law, and its origin can perhaps be traced all the way back to the 40th article of the Magna Carta: 

To none will we sell, to none will we deny, to none will we delay right or justice.

53    As observed by the Malaysian court in PP v Su Liang Yu [1976] 2 MLJ 128 at p 129:

The dominant idea in both expressions ‘equal before the law’ and ‘equal protection of the law’ is that of equal justice. The meaning of these two expressions have been decided in a number of decisions of the US Supreme Court and also the Indian Supreme Courts and certain principles have been settled and accepted. Due to the demands caused by the  complexity of modern government the doctrine of classification was evolved by the courts for practical purposes and read into the equality provisions. It has been accepted therefore that a legislature for the purpose of dealing with the complex problems arising out of an infinite variety of human relations cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate.

54     Later, in the Privy Council case of Ong Ah Chuan v PP [1981] 1 MLJ 64; [1980–1981] SLR 48 (which was cited with approval by the High Court in Kok Hoong Tan Dennis v PP [1997] 1 SLR 123), Lord Diplock stated the principle as follows at pp 72 (MLJ) and 64 (SLR):

All criminal law involves the classification of individuals for the purposes of punishment, since it affects those individuals only in relation to whom there exists a defined set of circumstances — the conduct and, where relevant, the state of mind that constitute the ingredients of an offence. Equality before the law and equal protection of the law require that like should be compared with like. What art 12(1) of the Constitution assures to the individual is the right to equal treatment with other individuals in similar circumstances. It prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others; it does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances of the offences that has been committed. … Provided that the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law, there is no inconsistency with art 12(1) of the Constitution. [Emphasis is ours.]

Clearly, the concept of equality does not mean that all persons are to be treated equally, but simply that all persons in like situations will be treated alike.

(ii) Law on classification under art 12(1)

55     The question before us was whether the classification in s 37(1) of the PCA on the grounds of citizenship was arbitrary or unreasonable. If it was, it would be in contravention of art 12(1); if not, the provision was valid.

56     Embarking on this inquiry, we shall set out the law in this area which is fairly well settled: see Shri Ram Krishna Dalmia & Ors v Shri Justice SR Tendolkar & Ors [1959] SCR 279, Ghulam Sarwar v Union of India AIR 1967 SC 1335, Datuk Haji Harun bin Haji Idris v PP[1977] 2 MLJ 155 and Government of Malaysia v VR Menon [1990] 1 MLJ 277.

57     In this respect, we need do no more than to refer to two of the judgments in the case of Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165. There, Salleh Abas LP in his dissenting speech (there was no dispute on the law and approach to take) stated as follows at pp 166–167:

The requirement for equal protection of the law does not mean that all laws passed by a legislature must apply universally to all persons and that the law so passed cannot create differences as to the persons to whom they apply and the territorial limits within which they are in force. Individuals in any society differ in many respects such as, inter alia, age, ability, education, height, size, colour, wealth, occupation, race and religion. Any law made by a legislature must of necessity involve the making of a choice and  differences as regards its application in terms of persons, time and territory. Since the legislature can create differences, the question is whether these differences are constitutional. The answer is this: if the basis of the difference has a reasonable connection with the object of the impugned legislation, the difference and therefore the law which contains such provision is constitutional and valid. If on the other hand there is no such relationship the difference is stigmatized as discriminatory and the impugned legislation is therefore unconstitutional and invalid. This is known as the doctrine of classification which has been judicially accepted as an integral part of the equal protection clause. Its classic rendering is well summarized in Lindsley v National Carbonic Gas Co (1911) 220 US 61, pp 76–79, 55 L Ed 369 [this case should be cited as Lindsley v Natural Carbonic Gas Co], in the following terms: 

‘1   The equal protection clause of the 14th amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary.

2       A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality.

3   When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.

4   One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’ [Emphasis is ours.]

58     The standard of validity required under the equality provision then received a more elaborate treatment by Mohamed Azmi SCJ in the same case in which the learned judge stated at p 170:

What is the standard for validity under art 8? …

(a)   The first question to be asked is, is the law discriminatory, and that the answer should then be — if the law is not discriminatory, it is good law, but if it is discriminatory, then because the prohibition of unequal protection is not absolute but is either expressly allowed by the constitution or is allowed by judicial interpretation, we have to ask the further question, is it allowed? If it is, the law is good, and if it is not the law is void.

(b)   Discriminatory law is good law if it is based on ‘reasonable’ or ‘permissible’ classification, provided that

i)       the classification is founded on an intelligible differentia which distinguishes persons that are grouped together from others left out of the group; and

(ii) the differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that there must be a nexus between the basis of classification and the object of the law in question.

(c)   In considering art 8 there is a presumption that an impugned law is constitutional, a presumption stemming from the wide power of classification which the legislature must have in making laws operating differently as regards different groups of persons to give effect to its policy.

On the law as to the doctrine of classification, I should add nothing else on my own account. Following the principle laid down in Lindsley v [Natural] Carbonic Gas Co (1911) 220 US 61, pp 76–79; 55 L Ed 369 and Datuk Haji Harun bin Haji Idris v PP [1977] 2 MLJ 155, if the basis of the difference has a reasonable connection with the object of the impugned legislation, the difference and therefore the law which contains such provision is constitutional and valid.

59     We respectfully adopt the views stated above. However, to avoid confusion, we would add the caution that in applying the test laid down by Mohamed Azmi SCJ, it is best to keep the concept of differentiation and the concept of discrimination distinct. It is best to refrain from using the word ‘discrimination’ in its loose sense. The reason is that a discriminatory law or executive act is one which will contravene art 12. In this sense, it is inappropriate to say that a discriminatory law can be good law because it satisfies the classification test. Any differentiation in a law or by executive action which offends art 12 is discriminatory. Otherwise, it is just a differentiating law.

(iii) Was s 37(1) of the PCA unconstitutional?

60     Turning to the validity of s 37(1) of the PCA, we had no hesitation in concluding that the provision was not unconstitutional. In so saying, we shall first allude briefly to the principle that there is a strong presumption of constitutional validity. In PP v Su Liang Yu (supra), Hashim Yeop A Sani J said as follows at pp 130–131:

[T]he first duty of the court which is really a rule of common sense is to examine the purpose and policy of the statute … In its approach to the problem the court ought, prima facie, to lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground and it is for the party who attacks the validity of the legislation to place all materials before the court to show either the enactment or the exercise of the power under it is arbitrary and unsupportable.

For an elaboration on the principles of the presumption of constitutionality, see Lee Keng Guan v PP [1975-1977] SLR 231 at pp 237 which we shall refer to shortly.

61     We moved on next to the standard of validity. It was apparent that s 37(1) differentiated Singapore citizens from non-citizens. However, the prohibition of unequal protection is not absolute. To this extent, we had to consider whether the classification was reasonable or permissible. Two sub-questions arose: (a) whether the classification was founded on intelligible differentia and (b) whether the differentia bore a rational relation to the object of the provision — in other words, a nexus must be established.

62     It was only at sub-question (b) that s 37(1) encountered difficulty, just as the learned judge had found, and it was on this question of whether a rational differentia existed that the issue of constitutionality turned. The test of constitutionality in s 37(1) was thus reduced to whether the differentia or classification on the basis of citizenship was rational. 

63     The preamble to the Prevention of Corruption Ordinance in 1960 states:

An Act to provide for the more effectual prevention of corruption.

We thought it obvious that the 1966 introduction of the extraterritorial clause in s 31A (as it then was) was, inter alia, to widen the ambit of the Act for the more effective control and suppression of corruption. Section 37(1) clearly does not derogate from this broad objective.

64     Section 37(1) of the PCA states:

The provisions of this Act have effect, in relation to citizens of Singapore, outside as well as within Singapore; and where an offence under this Act is committed by a citizen of Singapore in any place outside Singapore, he may be dealt with in respect of that offence as if it had been committed in Singapore.

Evidently, the language of s 37(1) is very wide, and the section is capable of capturing all corrupt acts by Singapore citizens outside Singapore, irrespective of whether such corrupt acts have consequences within the borders of Singapore or not.

65     But, should s 37(1) also be extended to non-citizens, even if Parliament is theoretically not constrained in legislating for non-citizens outside its jurisdiction? We raised this question because, had s 37(1) applied to non-citizens as well, there would have been no constitutional objection on the ground of discrimination against Singapore citizens. Was it so irrational or unreasonable then for s 37(1) not to apply to the corrupt activities of non-citizens outside Singapore?

66     As it stands, for most practical purposes, a statute generally operates within the territorial limits of the Parliament that enacted it. In his submission, counsel for the respondent drew our attention to two presumptions under the common law on territorial sovereignty. He pointed out that, in Driedger on the Construction of Statutes (1994, 3rd Ed), the learned author had stated at p 334 that: (a) it is presumed that legislation is intended to apply to all persons, things and events within the boundaries of the enacting jurisdiction; and (b) it is presumed that legislation is not intended to apply extraterritorially to persons, things or events outside the boundaries of the enacting jurisdiction. Both presumptions are, however, rebuttable by evidence of express or implied intention to the contrary.

67     As a rule of statutory interpretation, we noted that more than a century ago, Lord Russell CJ had already stated in R v Jameson [1896] 2 QB 425 at p 430 that:

[I]f there be nothing which points to a contrary intention, the statute will be taken to apply only to the United Kingdom … [I]t will be taken to apply to all persons in the United Kingdom … including foreigners who during their residence there owe temporary allegiance to Her Majesty … One other general canon of construction is this — that if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting. That is a rule based on international law by which one sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its own territory. [Emphasis is ours.]

68     More recently, in the House of Lords case of Air India v Wiggins [1980] 1 WLR 815 at p 819, Lord Diplock again said that:

[I]n construing Acts of Parliament there is a well-established presumption that, in the absence of clear and specific words to the contrary, an ‘offence-creating section’ of an Act of Parliament (to borrow an expression by this House in Cox v Army Council [1963] AC 48, p 67) was not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English criminal court.

Cox v Army Council was concerned with a statute which in the plainest possible words made acts committed abroad by serving members of the British Army offences triable by court-martial. The presumption against a parliamentary intention to make acts done by foreigners abroad offences triable by English criminal courts is even stronger.

69     And later, La Forest J’s detailed analysis of the territorial doctrine in the Canadian Supreme Court case of Libman v R 21 CCC (3d) 206 led him to state as follows at pp 228–229:

[T]he territorial principle in criminal law was developed by the courts to respond to two practical considerations, first, that a country has generally little direct concern for the actions of malefactors abroad, and secondly, that other States may legitimately take umbrage if a country attempts to regulate matters taking place wholly or substantially within their territories. For these reasons the courts adopted a presumption against the application of laws beyond the realm … [Emphasis is ours.]

70     We would therefore venture to say, as was apparent to us, that it was with this similar consideration of comity in view that non-citizens were left out of s 37(1) of the PCA by Parliament. As a result, when it came to determining the rationality of the classification, the objective of the Act must be balanced against Parliament’s intention to observe international comity.

71     To this extent, we also thought that it was highly relevant to consider how the section was worded. The wider its ambit, the greater the encroachment upon the affairs of non-citizens outside Singapore’s jurisdiction, making it more compelling to leave out non-citizens so as to abide by the comity of nations. Conversely, a narrower ambit (eg where a nexus of harmful consequences is required under the penal provision) could well render an argument based on comity less persuasive.

72     But, either way, it is not for the courts to dictate the scope and ambit of a section or rule on its propriety. That is a matter which only Parliament can decide; the courts can only interpret what is enacted. As so aptly put by Lord Morris in the Privy Council case of Runyowa v R [1967] 1 AC 26 at p 49:

A legislature must assess the situations which have arisen or which may arise and form a judgment as to what laws are necessary and desirable for the purpose of maintaining peace, order and good government. It can hardly be for the courts unless clearly so empowered or directed to rule as to the necessity or propriety of particular legislation. … As Quenet ACJ said (in Gundu and Sambo’s case [CA No AD 256 of 1965] ), if once  laws are validly enacted it is not for the courts to adjudicate upon their wisdom, their appropriateness or the necessity for their existence.

73      Consequently, if Parliament had elected to frame s 37(1) so widely as to cover all corrupt acts within and outside Singapore, irrespective of whether there were harmful consequences within the national boundaries or not, then the only question which this court could concern itself was whether citizenship provided a reasonable and intelligible basis for the differentiation against Singapore citizens — the question was strictly a constitutional one.

74     As Lord Diplock so rightly observed in Treacy v DPP [1971] AC 537 at p 561: 

The only relevant reason, now that the technicalities of venue have long since been abolished, is to be found in the international rules of comity which, in the absence of express provision to the contrary, it is presumed that Parliament did not intend to break. It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if we were to punish persons for conduct which did not take place in the United Kingdom and had no harmful consequences there. But I see no reason in comity for requiring any wider limitation than that upon the exercise by Parliament of its legislative power in the field of criminal law. [Emphasis is ours.]

75     Therefore, in view of the all-encompassing ambit of s 37(1), which would have captured all corrupt acts independently of harmful consequences in Singapore, we unanimously concluded that it was rational to draw the line at citizenship and leave out non-citizens so as to observe international comity and the sovereignty of other nations.

76     This being said, we would also respectfully depart from the learned judge’s view in¶64 of his judgment that differentiation by reference to citizenship fell short of achieving the object of the PCA, that citizenship was not a useful criteria for determining guilt because of under-inclusiveness and over-inclusiveness.

77     To begin with, we did not think that the learned judge could postulate a case each of under and over-inclusiveness to impugn the validity of s 37(1). In so doing, he had failed to give effect to the presumption of constitutionality which we alluded to earlier in the judgment.

78     The correct application of the presumption was demonstrated by this court in Lee Keng Guan v PP (supra). That case concerned two statutory provisions, s 4 of the Arms Offences Act 1973 (AOA) and s 324 of the Penal Code (Cap 103, 1970 Ed) alone or read with s 511 of the Penal Code. Both statutes could have equally applied to persons placed in identical circumstances (ie persons who are alleged to have ‘used’ or attempted to ‘use’ an arm). However, s 4 of the AOA carried the death penalty, while s 324 of the Penal Code carried an imprisonment term or fine. It was contended that this left the prosecution an unfettered discretion or an arbitrary power to pick and choose as against those persons which of the two statutory provisions to apply. Hence, s 4 was ultra vires as being in violation of the equality provision in the Constitution.

79     Wee Chong Jin CJ, in delivering judgment of this court approved the following principles on the presumption of constitutionality at p 237 set out in the Indian Supreme Court decision of Ram Krishna Dalmia v Justice Tendolkar AIR 1958 SC 538:

(b)   that there is always a presumption in favour of the constitutionality of an enactment and this burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

(c)   that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(e)   that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the time and may assume every state of facts which can be conceived existing at the time of legislation;

(f)   that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporation to hostile or discriminating legislation.

Applying these principles, the learned Chief Justice held as follows at p 238:

[W]e are of the opinion that the presumption that s 4 of the Act is constitutional has not been rebutted merely by drawing our attention to a provision in the Penal Code (enacted over a century ago and was according to its long title, a codifying enactment ‘to consolidate the law relating to criminal offences’) under which a person who ‘uses’ or attempts to ‘use’ an arm can also be charged and on conviction be liable to less severe punishment than if charged under s 4 of the Act.

         In our judgment, it is clear that the policy of the legislature as enacted in the Arms Offences Act 1973 is that all persons who unlawfully possess, carry or use arms should be charged and on conviction punished under the Act and therefore there is no discrimination inherent in the Act itself. In our judgment s 4 of the Act does not violate the [equality provision] of the Constitution.

80     From the case above and applying the principles adopted, it seemed to us that, unless the law is plainly arbitrary on its face, postulating examples of arbitrariness would ordinarily not be helpful in rebutting the presumption of constitutionality. This is because another court or person can well postulate an equal number if not more examples to show that the law did not operate arbitrarily. If postulating examples of arbitrariness can always by themselves be sufficient for purposes of rebuttal, then it will hardly be giving effect to the presumption that Parliament knows best for its people, that its laws are directed at problems made manifest by experience, and hence its differentiation is based on adequate grounds. Therefore, to discharge the burden of rebutting the presumption, it will usually be necessary for the person challenging the law to adduce some material or factual evidence to show that it was enacted arbitrarily or had operated arbitrarily. Otherwise, there will be no practical difference between the presumption and the ordinary burden  of proof on the person asserting unconstitutionality. In the present case, no such evidence was adduced by the respondent, and the learned judge simply postulated examples of arbitrariness in a vacuum. That, in our view, could not rebut the presumption.

81     In any event, we also found the learned judge’s criticisms of the differentiation in s 37(1) unfounded. If s 37(1) was under-inclusive in that it failed to capture corrupt non-citizens whose corrupt acts outside Singapore have consequences in Singapore, that was because of the overriding need to observe international comity since Parliament had chosen to frame s 37(1) in very wide language. But surely, it was undeniable that s 37(1) would go some way in capturing the corrupt acts of citizens abroad, and that in itself would have furthered the object of the Act — that in our view was sufficient; the underinclusiveness of the provision was not fatal. The enactment of a provision need not be seamless and perfect to cover every contingency. Such a demand would be legislatively impractical, if not impossible.

82     And, if the differentiation along the line of citizenship was justified and permissible as we so held, over-inclusiveness was irrelevant to the constitutional issue. Section 37(1) was only over-inclusive because, as the learned judge found, it captured that segment of Singapore citizens not contemplated by the Act. But, this would not offend the equality provision because the section would apply to all Singapore citizens as a class. It followed then that the objection to classification between citizens and non-citizens on the basis of over-inclusiveness did not arise at all.

83     Hence, far from saying that the differentiation against Singapore citizens was arbitrary or unreasonable which led to unconstitutionality, we agreed with the Attorney General that s 37(1) of the PCA was a piece of highly responsible legislation which took into account international norms and practices.

84     Finally, the learned judge had suggested in¶71 of his judgment ‘that the object of the section might have been achieved more skillfully and comprehensively, possibly by making it an offence for any person to commit an act of corruption outside Singapore so long as it pertained to the affairs of a principal who had some connection with Singapore.’ We did not necessarily agree with what the learned judge had said in the context of s 37(1) since it seemed that there was at least an argument that s 29 of the PCA, which was referred to us by the Attorney General, could well be wide enough to address the learned judge’s concerns about non-citizens committing corruption outside Singapore which could cause harm in Singapore.

85     However, we appreciated the learned judge’s adoption of ‘connection’ as the basis for his suggestion, insofar as an exclusively territorial approach to penal provisions is not always desirable. Indeed, it has been said to be settled law that any State may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the State reprehends: see Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10 at pp 38–39 and United States v Aluminum Co of America (1945) 148 Fed Rep 2d 416.

86     Lord Diplock, in his celebrated discussion on the bounds of comity in Treacy v DPP (supra), had therefore stated as follows at p 562:

Nor … can I see any reason in comity to prevent Parliament from rendering liable to punishment, if they subsequently come to England, persons who have done outside the United Kingdom physical acts which have had harmful consequences upon victims in England. The state is under a correlative duty to those who owe obedience to its laws to protect their interests and one of the purposes of criminal law is to afford such protection by deterring by threat of punishment conduct by other persons which is calculated to harm those interests. Comity gives no right to a state to insist that any person may with impunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state. It may be under no obligation in comity to punish those acts itself, but it has no grounds for complaint in international law if the state in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts.

87     The comments of the Privy Council in Liangsiriprasert v Government of the United States of America [1991] 1 AC 225 are also useful here. The board, at p 251, stated:

[I]n this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly, a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong.

88     As Singapore becomes increasingly cosmopolitan in the modern age of technology, electronics and communications, it may well be more compelling and effective for Parliament to adopt the effects doctrine as the foundation of our extraterritorial laws in addressing potential mischief. But we must not lose sight that Parliament, in enacting such laws, may be confronted with other practical constraints or considerations which the courts are in no position to deal with. The matter, ultimately, must remain in the hands of Parliament to legislate according to what it perceives as practicable to meet the needs of our society.

Conclusion

89     Questions on the constitutionality of our laws and whether they have been enacted ultra vires the powers of the legislature are matters of grave concern for our nation as a whole. The courts, in upholding the rule of law in Singapore, will no doubt readily invalidate laws that derogate from the Constitution which is the supreme law of our land.

90     However, having given full consideration to the two questions posed by the Attorney General, the answers to them must be ‘no’ and ‘no’ again — s 37 of the PCA was not ultra vires the powers of the legislation; s 37 was not inconsistent with art 12(1) of the Constitution.

Questions answered in the negative.

Reported by Gregory Tan

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