Chan Hiang Leng Colin and Others v Public Prosecutor

JudgeYong Pung How CJ
Judgment Date08 August 1994
Neutral Citation[1994] SGHC 207
Citation[1994] SGHC 207
Defendant CounselBala Reddy and Soh Tze Bian (Deputy Public Prosecutors)
Published date19 September 2003
Plaintiff CounselWilliam Glen How QC and Leslie Netto (Netto & Netto)
Date15 September 1994
Docket NumberMagistrate's Appeal No 29/94/01-4
CourtHigh Court (Singapore)
Subject MatterWhether ultra vires,Constitutional Law,Extent of right,Subordinate court,Freedom of religion,Role and duty of court,s 18 & First Schedule para 1 Supreme Court of Judicature Act (Cap 322) -s 56A Subordinate Courts Act (Cap 321),Possession of prohibited publications,Proper subject of judicial review proceedings,Constitution of the Republic of Singapore art 15(4),High court,Statutory offences,Applicability of exception in O'Reilly v Mackman,Undesirable Publications Act,Criminal Procedure and Sentencing,Jurisdiction,Jurisdiction of High Court,Courts and Jurisdiction,Principles,Ministers' exercise of discretion,Whether reference mandatory,s 56A Subordinate Courts Act (Cap 321),Whether orders of ministers banning publications of religious group ultra vires and unconstitutional,Defences of ultra vires and unconstitutionality raised in criminal proceedings,Judicial review,Administrative discretion,Whether High Court may determine issues despite its powers being limited to that of the subordinate courts,Administrative Law,Jurisdiction of High Court sitting in appellate capacity to conduct judicial review,s 3 Undesirable Publications Act (Cap 358),Issues arising out of interpretation of the Constitution,Reference to High Court,Fundamental liberties,Appeal,ss 3 & 4(2) Undesirable Publications Act (Cap 358),s 24(1) Societies Act (Cap 311),Whether Minister for Culture failed to exercise discretion,Criminal Law

This was an appeal brought by the appellants against their convictions in the district court for being in possession of publications published by the Watch Tower Bible & Tract Society (WTBTS), which are prohibited by gazette notification No 123 dated 14 January 1972 (Order 123), made pursuant to s 3 of the Undesirable Publications Act (Cap 358) (the UPA). The appellants were convicted under s 4(2) of the UPA. Fines of $800, $500, $500 and $700 were imposed on the four appellants respectively. A fifth accused who was jointly tried with the appellants was acquitted. After hearing the submissions of counsel for both parties, I dismissed the appeal. I now set out my reasons.

The facts were largely undisputed.
On 2 July 1992, a team of police officers seized a total of 173 booklets, including those which formed the subject-matter of the charges in the district court, from the five accused persons in and around Blk 12, Marsiling Drive. These publications were sent to the Ministry of Information and the Arts (MITA). A subsequent report from the Controller, Undesirable Publications, identified 13 publications which were prohibited under s 3 of the UPA. Not all of these publications were published solely by WTBTS. Several were published jointly by WTBTS and an organization known as the International Bible Students Association (IBSA) whereas some were published solely by IBSA. In the court below, the district judge held that the publications published solely by IBSA were not within the scope of Order 123 although they were identical with some of those published by WTBTS. The charges against the accused persons were accordingly amended and, as a result, the fifth accused was acquitted. This finding was not in issue in the appeal.

The appellants were adherents of the sect known as the Jehovah`s Witnesses.
The Jehovah`s Witnesses have little or no association with other Christian denominations. Theologically, they differ from orthodox Christianity in many respects. The most controversial aspect of the Jehovah`s Witnesses` doctrine is their belief that `Satan is the God of this world`. They maintain a complete separation from governments and regard world powers and political parties as the unwitting allies of Satan (see The New Encyclopedia Britannica Vol 6, p 525). As a result, Jehovah`s Witnesses refuse to salute the flag of any nation or perform any form of national service or participate in public elections. It was on this aspect that on 14 January 1972 the Singapore Government de-registered the Singapore Congregation of Jehovah`s Witnesses. In a press statement from the Ministry of Home Affairs, it was stated that:

... its [the Jehovah`s Witnesses] continued existence is prejudicial to public welfare and good order in Singapore. The doctrine of the sect and nature of its propaganda are based on its claim that Satan and its dispensation are responsible for all organized Government and religion. The result of the impending `Armageddon` will be the destruction of everyone except Jehovah`s Witnesses who will inherit the earth. By virtue of this doctrine the sect claims a neutral position for its members in wartime. This has led to a number of Jehovah`s Witnesses in the National Service to refuse to do any military duty. Some of them even refuse to wear uniforms.

The dissolution of the Singapore Congregation of Jehovah`s Witnesses as a society was ordered by the Minister for Home Affairs pursuant to his powers under s 24(1) of the Societies Act (Cap 311) and via gazette notification No 179 (Order 179).
At the same time, the Minister for Culture (now MITA) by Order 123 banned all publications by WTBTS, the parent body of the Jehovah`s Witnesses, pursuant to his powers under the UPA.

In the trial below, the accused persons elected to remain silent when they were called upon for their defence.
Instead, they called one Francis Wan (DW1), a self-professed Jehovah`s Witness for 24 years who had known the five accused persons for several years, as a defence witness. Wan disagreed with the press statement and said that it was not part of the claim of the Jehovah`s Witnesses that all governments act for Satan. According to Wan, the Jehovah`s Witnesses `did not foment rebellion or resistance to the police and are willing to submit to the laws of the land`. He denied that the Jehovah`s Witnesses preached that national service should not be undertaken by their adherents and that they, in fact, advocated an official policy to tell persons not to break the law. His `qualifications` as an expert witness, outlined in a `confidential professional profile`, were not challenged by the prosecution. It seemed to me however that his evidence had to be treated with caution as, for reasons which will be addressed below, this aspect of the doctrine of the Jehovah`s Witnesses appeared to be of great significance.

The appellants did not dispute that they were caught in possession of the prohibited publications.
Instead, they raised before me through their counsel the same issues which were canvassed before the district judge. At the commencement of the trial below, the following issues were raised by way of a preliminary objection:

(1) whether Order 123 was ultra vires the UPA; and

(2) whether Order 123 was ultra vires art 15 of the Constitution of the Republic of Singapore.

Suffice it to say for now that the district judge dismissed these preliminary objections.
An additional ground was contended before me at the hearing of this appeal. The appellants also sought to declare that Order 179 was ultra vires and unconstitutional. The two orders were alleged to have unlawfully denied the appellants and other Jehovah`s Witnesses the free exercise of their religious liberty as guaranteed under the Constitution. Further, the appellants contended that the two orders were null and unenforceable as having been promulgated arbitrarily and by a denial of natural justice, without notice or hearing, on secret evidence wholly irrelevant to the public interest. The appellants also claimed that the official statement from the Ministry of Home Affairs was inaccurate and misleading, and that no opportunity was given to respond to it.

A crucial aspect of this case was the fact that the lower court was a subordinate court and this court was of course now sitting as an appellate court.
The jurisdiction of the district court was limited, as there was no provision in the Subordinate Courts Act (Cap 321) which was equivalent to para 1 of the First Schedule to the Supreme Court of Judicature Act (Cap 322) (SCJA) which conferred upon the High Court the power of judicial review. As such, the district court could not have determined the constitutional issues raised.

The position in Singapore is unique.
It is provided in the recently enacted s 56A(1) of the Subordinate Courts Act that a proceeding can be stayed for reference of questions on the Constitution to the High Court when the subordinate court is faced with such issues. Section 56A reads:

(1) Where in any proceedings in a subordinate court a question arises as to the interpretation or effect of any provision of the Constitution, the court hearing the proceedings may stay the proceedings on such terms as may be just to await the decision of the question on the reference to the High Court.

(2) An order staying proceedings under this section may be made by the court of its own motion or on the application of any party and shall be made at such stage of the proceedings as the court may see fit having regard to the decision of such questions of fact as may be necessary to be settled to assist the High Court in deciding the question which has arisen and to the speedy and economical final determination of the proceedings.

(3) Where an order for stay of proceedings has been made under this section, the court shall state the question which in its opinion has arisen as to the interpretation or effect of the Constitution in the form of a special case which so far as may be possible shall state the question in a form which shall permit of an answer being given in the affirmative or the negative.

(4) The court shall cause the special case to be transferred to the High Court and the High Court shall hear and determine the constitutional question arising out of the case in the exercise of its original jurisdiction.

(5) Notice of the hearing of the special case by the High Court under this section shall be given to the Attorney-General who shall have a right to be heard.

The issues raised in this case clearly fell within the scope of this provision.
Unfortunately, the district judge did not make such a reference to the High Court as he ought to have done. However, there was no error in law on his part as the wording of s 56A implies that any such reference is at the discretion of the court and is not mandatory. The purpose of this discretion is simple. It is to prevent unnecessary stays of proceeding each time a party purports to raise a constitutional issue. The merits of the case can then be considered by the district judge before deciding whether such a reference ought to be made to the High Court.

In any event, the district judge ruled that he had no jurisdiction to review the exercise of discretion by the minister.
However, he held that the accused persons were entitled to raise as a defence the validity of Order 123 and that the court was entitled to rule on whether there was a patent invalidity in that order, in the sense that it was ultra vires its parent Act. This was limited to the examination of the wording of the provisions and no more. Anything over and above this amounted to an exercise of the powers of judicial review. The district judge proceeded to rule that there was no patent invalidity in Order 123. He did not find anything in the wording of the order to suggest that it was ultra vires s 3(1) of the UPA, and that, by virtue of s 116 of the Evidence Act (Cap 97,...

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