1 Cur Adv Vult

2 The respondent was convicted on 28 July 1991 by a district court on his own plea on a charge of driving while under the influence of drink on 9 June 1990 under s 67(1) of the Road Traffic Act (Cap 276) (`the Act`). He was sentenced to a fine of $1,000, in default three months` imprisonment, and he was disqualified from driving all classes of vehicles for four years.

3 The respondent was also charged and convicted on two other road traffic-related charges, but these are not of any relevance to the matter before this court. He had previously on 5 March 1990 been convicted on a similar charge of driving while under the influence of drink under s 67(1) of the Act before it was amended. This conviction is relevant to the question before this court.

4 Section 67(1) of the Act was amended with effect from 2 April 1990 in such a way that the punishment for both first time and repeat offenders was increased. Section 67(1) before the amendment read as follows:

5 Section 67(1) after the amendment reads as follows:

6 The amendment was effected by s 18 of the Road Traffic (Amendment) Act No 7 of 1990 (`the Amendment Act`), by expressly repealing the pre-existing s 67(1) and substituting the new section.

7 The punishment introduced by the amendment can be summarized as follows. Before the amendment, for first offenders, it was either a fine or imprisonment. For repeat offenders, the punishment was a fine or imprisonment, or both, although, as to be expected, the limits prescribed were higher for repeat offenders than for first offenders. There was no provision for a minimum fine or imprisonment for either first or repeat offenders, although the maximum, of course, was provided.

8 The position after the amendment is that for first offenders, there is still the alternative of a fine or imprisonment, but a minimum is imposed for the fine, though not for the imprisonment. For repeat offenders, the penalty has been drastically enhanced. They are now subject to both a minimum fine and a mandatory term of imprisonment.

9 As the offence of which the respondent was convicted was committed after the date of coming into force of the amendment, it is not disputed that he was properly charged under the amended section.

10 The dispute is whether in sentencing him the court should consider him to be a repeat offender or a first offender. If his previous conviction under the section before it was amended could properly be taken into account, then he was liable to a fine with a minimum of $3,000 and a maximum of $10,000 and a mandatory term of imprisonment not exceeding 12 months. If the previous conviction under the pre-amended section could not properly be taken into account, then he was liable only to a fine with a minimum of $1,000 and a maximum of $5,000 or imprisonment not exceeding six months.

11 The district judge who heard the case at first instance imposed a fine of $1,000, apparently treating the respondent as a first offender under the amended s 67(1). In his grounds of decision, however, the district judge took the view that the respondent should have been treated as a second offender punishable with a minimum fine of $3,000 and a mandatory sentence of imprisonment. He said therefore that the $1,000 he had imposed was an error.

12 The public prosecutor, being dissatisfied with the sentence as imposed by the district judge, appealed to the High Court. The question which we now have to decide was argued before FA Chua J. On 4 February 1991, the learned judge gave his decision on the point.1 He said [at p 505]:

13 A distinction should be made between an amendment by deletion or insertion of words from or into an existing legislation, and an amendment by the repeal of the whole section and substituting therefor a new section. The re-enacted s 67(1) is in fact a new section.

14 Article 11(1) of the Constitution of Singapore protects a person against retrospective criminal laws.

15 In my view the respondent was charged and convicted under the re-enacted s 67(1) for the first time, notwithstanding that he had been dealt with under the repealed s 67(1) once before on 5 March 1990.

16 To treat the respondent as a second offender under the re-enacted section is to apply the re-enacted section to him retrospectively. The words preceding the provision for punishment of a second or subsequent offender under the re-enacted s 67(1) are `in the case of a second or subsequent conviction`. These words can only mean a second or subsequent conviction under the re-enacted s 67(1).

17 On 27 February 1991, FA Chua J varied the sentence from the fine of $1,000 to one of imprisonment for one month, the order of disqualification to stand. He also ordered a refund of the fine of $1,000 which the respondent had already paid. In doing so, the learned judge treated the respondent as a first offender under the new s 67(1).

18 We are informed that the respondent has already served the sentence of one month`s imprisonment.

19 The public prosecutor applied to the High Court under s 60 of the Supreme Court of Judicature Act (Cap 322) to reserve the following question of public interest for the decision of this court:

20 The arguments

21 The respondent`s counsel`s argument before us consists basically of an exposition of an expansion on the view of the learned judge.

22 Counsel`s argument may be summarized as follows. Firstly, counsel drew the distinction which the learned judge had drawn in the following passage of his judgment1 [at p 505]:

23 Secondly, counsel for the respondent submitted that once a statutory provision is repealed it does not form part of the corpus juris of Singapore. Counsel in his written submission said:

24 Thirdly, counsel submitted that even if the re-enactment creates an offence which is substantially the same as the offence subject of the repealed provision, the fact remains that the offence in the repealed s 67(1) has ceased to exist. He submitted that the re-enacted s 67(1) creates a new offence, albeit not new in creature but new in so far as it takes effect as from the effective date of the Amendment Act.

25 Fourthly, on the retrospective operation point, counsel submitted that to sentence the respondent as a second offender under the re-enacted section is to consider his earlier conviction on March 1990 as previous conviction under the re-enacted section. To do this, counsel submitted, is to apply the re-enacted section to the respondent retrospectively. Counsel said this is against the common law rule against retrospective operation of studies. He said it is also against art 11(1) of the Constitution.

26 The submission of Mr Bala Reddy, deputy public prosecutor, may be summarized as follows. Firstly, he submitted, a distinction should be drawn between a repeal and an amendment of a statutory provision.

27 Secondly, he submitted that whether a provision has been repealed or amended is a matter of substance and not of form, and the court may and should go behind the words used by Parliament to ascertain whether what has been done is a repeal or an amendment.

28 Thirdly, he submitted that s 67(1) has merely been amended and has not been repealed, and therefore any previous conviction under the section before the amendment can validly be taken into account for the purpose of imposing a punishment under the re-enacted section.

29 Fourthly, he submitted that even if the court comes to the view that s 67(1) has been repealed, and not merely amended, since the nature of the offence has not been changed, the previous conviction under the repealed provision can still be taken into account for the purposes of imposing punishment under the re-enacted section. Citing the Canadian case of Campbell v The King [] 95 the learned deputy public prosecutor submitted that in the present case the repeal and re-enactment must be construed as an affirmation and continuance of the former law.

30 Lastly, on art 11 of the Constitution, he submitted in essence that there is no contravention of this provision of the Constitution in treating a conviction under the old s 67(1) as a conviction which could be taken into account in deciding whether the respondent is a repeat offender. No new offence was created by the re-enacted section, and therefore there is no contravention of art 11(1).

31 Repeal or amendment controversy

32 We do not think that the question before us could sensibly be decided on the basis whether the former s 67(1) of the Act has been repealed or merely amended. We do not think that for the purpose of resolving the question before us any meaningful distinction can be drawn between a repeal and an amendment.

33 We are aware that, as stated earlier, the Amendment Act expressly repealed the old s 67(1) and substituted the new. We are of the view, however, that this does not assist us in any way in coming to a proper construction of the new section. One only needs to look at the subsection itself to see that the amendment could be effected either by repealing the whole subsection and substituting therefor the new subsection, or by deleting from the old subsection the portion dealing with punishment and inserting the wording of the new enhanced punishment. Either way achieves, editorially and in legal effect, the same result. There is no magic to the use by the draughtsman of the word `repeal`.

34 There are, of course, situations in which an argument could properly be raised based on a distinction between repeal and amendment. At common law, the distinction, broadly, is this. Subject always to any savings provision which may be made, when a statute is repealed, it is treated as if it had never existed except as to transactions past and closed. What has been done and perfected cannot be disturbed, but the enactment cannot be looked to for assistance for any further purpose. Thus, subordinate legislation, unless saved by the repealing enactment, lapses on the repeal of the provisions under which it was made (see 44 Halsbury`s Laws of England (4th Ed) at para 971).

35 On the other hand, when an Act has been amended, the presumption is that it is intended that the Act shall continue to be operative, but, as from the date of the amendment, in its amended form.

36 The distinction between a repeal and an amendment of an Act raises the sort of question that arose in Beaumont v Yeomans [1934] 34 SR (NSW) 562 a case that went before the Court of Criminal Appeal of New South Wales. In that case, s 105(1) of the Pastures Protection Act 1912 was amended by an Amendment Act of 1918. By a proclamation made under the 1912-1918 Act, these Acts were made applicable to the Narrandera pastures protection district. Subsequently, by a provision of a further Amendment Act of 1920, s 105(1) of the 1912-1918 Act was expressly repealed and a new subsection inserted in its place. However, no proclamation was made declaring the Act of 1912-1918, as amended by the Act of 1920, to apply to any particular district.

37 The question which the New South Wales Court of Criminal Appeal had to decide was whether the Act as thus amended applied and was in force in the Narrandera pastures protection district. It was argued for the appellant that s 105(1) had been repealed, that what had been proclaimed to be applicable to the district in question was the repealed subsection; since no proclamation had been made in respect of the new sub-s 105(1), that new subsection had no application.

38 Jordan CJ in the course of his judgment in the Court of Criminal Appeal said:

39 The learned Chief Justice held that the amendment to the Act of 1912-1918 made by the Act of 1920 and substituting other similar provisions in its place, was, in substance, an amendment and not a repeal.

40 In this case before us, no issue such as that which arose in Beaumont v Yeomans [1934] 34 SR (NSW) 562 arises. There is no question concerning the survivability of an act done under a repealed statutory provision which arises here in the way it arose in that case. The conviction of the respondent under s 67(1) before the `repeal` is a fact which did not cease to exist on the `repeal`. (We have placed the word in quotation marks as that is the word used in the Amendment Act but without attaching any significance to it with reference to the `repeal` versus `amendment` argument.) He remained as a person who had been so convicted. Unlike the situation in Beaumont v Yeomans [1934] 34 SR (NSW) 562 there is no question of the `repeal` affecting the subsistence of this fact. The question whether the legislative Act was a repeal or amendment is thus quite devoid of substance in the case before us.

41 What is before us is simply whether a conviction under s 67(1) before its `repeal` can properly be taken into account when applying the subsection after its `repeal`. The issue is one of construction, of ascertaining the intention of Parliament when enacting the new provision.

42 We have no doubt at all that what Parliament intended to do was simply to enhance the punishment for persons found guilty of driving while under the influence of alcohol and drugs. The offence dealt with by the amended subsection is the same as that under the old subsection. What was changed was the punishment prescribed for persons convicted of the offence. The legislature was particularly intent on dealing severely with repeat offenders. Rather than prescribing a maximum fine and imprisonment term and leaving it to the courts to impose an appropriate punishment up to the maximum, Parliament prescribed the minimum as well. This indicates beyond doubt an intention to see that such criminal conduct is treated with the required degree of seriousness by the courts. If the argument for the respondent is correct, it would lead to the absurd result that a person no matter how many times he has been convicted in the past under the old subsection would be treated as a first offender if he is convicted for the first time under the new subsection. This would obviously defeat the intention of the legislature.

43 We see that a similar problem of interpretation arose in the Nova Scotia Supreme Court in the case of Re Green [1936] 2 DLR 153 In that case, the accused, Green, was convicted of an offence of possession of liquor under s 66(2), as amended, of the Nova Scotia Liquor Control Act. He had been previously convicted of a similar offence under the same subsection of the Act before that subsection was amended. The subsection before the amendment provided that, except with authority therein specified, `no liquor shall be kept, had, given or consumed by any person`. The amendment consisted of splitting into two subsubsections, the offence of keeping or having liquor in s 66(2)(a), and the offence of giving or consuming in s 66(2)(b); otherwise, the amended version repeated verbatim what had been contained in the original s 66(2). The amendment was expressed to be by way of a repeal of the old provisions and substitution of the new.

44 It was argued on behalf of Green that as s 66(2) had by express words been repealed, any conviction made under it could not thereafter, by reason of such repeal, be made the basis of a second offence under the Act. It was argued that the effect of the repeal was to wipe out the prior conviction, and that only by express and positive language to that effect could such prior conviction be again taken into account.

45 Chisholm CJ, delivering the judgment of the court, rejected these arguments. He pointed out that in the same sentence of the amendment Act which repealed the old subsection, the subsection had been re-enacted in the same terms. The learned chief justice adopted the decision in cases which had been decided in the United States to the effect that:

46 Campbell CJ referred to the decision of Chisholm CJ in Re Green [1936] 2 DLR 153 and held that the previous conviction under the enactment before its amendment could properly be taken into account for the purpose of deciding whether the appellant should be subject to punishment as for a second offence.

47 We would adopt the decision of these learned judges in these two Canadian cases in which a similar point arose for decision. We have no doubt at all that the previous conviction of the respondent in this case under s 67(1) of the Act should be taken into consideration in deciding whether the proper punishment in his case should be as for a second or subsequent offence. We hold that the punishment in this case should have been as for a second offence.

48 The retrospective operation argument

49 We do not think that there is anything in the argument that in doing so the court would be applying the re-enacted provision retrospectively contrary to the common law rule against retrospective operation of statutes and against art 11(1) of the Constitution.

50 Article 11(1) of the Constitution provides as follows:

51 Article 11 of the Constitution is in essence a restatement of the common law rule as it applies to criminal laws.

52 It seems to us that there is no question of the respondent being punished for an act or omission which was not punishable by law when it was done. The offence with which he was charged was without doubt an offence at the time it was committed. As far as the punishment is concerned, in our view of the matter as we have set out above, we do not think that the punishment as for a second offence is anything other than what was prescribed by the Act. We thus see nothing here in what we hold that would offend against the rule against retrospective operation of statutes. In the result, we answer the question submitted to us in the affirmative.

53 Outcome: