Chee Soon Juan and another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 20 January 2011
• Neutral Citation: [2011] SGHC 17
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeals Nos 133 & 134 of 2008; 279 & 273 of 2009; 233 & 234 of 2010
• Year: 2011
• Published date: 26 January 2011
• Hearing Date: 09 November 2010,08 November 2010
• Plaintiff Counsel: Appellants in person
• Defendant Counsel: Mr Chia Ti Lik @ Xie ZhiLi (Chia Ngee Thuang & Co),Mr Sellakumaran Sellamuthoo, Mr Han Ming Kuang and Mr John Lu Zhuoren (Attorney General's Chambers)
• Subject Matter: Constitutional Law,Fundamental Liberties,Freedom of Speech,Equal Protection of the Law,Executive Licensing Policy,Collateral challenges in subordinate court proceedings,Reference of constitutional questions to the High Court,Analytical approach to s 56A of the Subordinate Courts Act (Cap 321, 1999 Rev Ed) and s 395 of the Criminal Procedure Code 2010 (No. 15 of 2010),Criminal Law,Statutory Offences,Offences under the Public Entertainments and Meetings Act (Cap 257, 2001 Rev Ed),Making an address in a public place without a licence
• Citation: [2011] SGHC 17

Steven Chong J: The Facts

The appellants were each convicted of four charges for providing public entertainment by way of making an address in a place to which the public has access without a licence under s 19(1)(a) the Public Entertainments and Meetings Act (Cap 257, 2001 Rev Ed) (“PEMA”). The offences were committed on four different occasions (in particular, on 16 November 2005, 8, 12 and 15 April 2006) at separate locations. A fine of $5,000 (in default five weeks’ imprisonment) for each charge was imposed on Chee Soon Juan (“Dr Chee”) while a fine of $2,000 was imposed on the other appellant, Yap Keng Ho (“Mr Yap”) for each of the offences (with 10 days’ default imprisonment for the offences committed on 16 November 2005, 8 April 2006, 12 April 2006, and 14 days’ default imprisonment for the offence committed on 15 April 2006).

The trial in respect of the offences committed on 8 April 2006 was heard by District Judge Jasvender Kaur over 10 days (MA 133 and 134 of 2008). The trial in respect of the offences committed on 16 November 2005 and 12 April 2006 lasting 33 days was heard by District Judge Thian Yee Sze (MA 273 and 279 of 2009), while District Judge Jill Tan heard the 15-day trial in respect of the offences committed on 15 April 2006 (MA 233 and 234 of 2010). The appellants appealed against all the convictions and the respective sentences. The three District Judges are hereinafter collectively referred to as “the trial Judges”.

It is provided under s 3 of the PEMA that no public entertainment shall be provided unless it is in an approved place and in accordance with a licence issued by the Licensing Officer. Section 19(1)(a) of the PEMA stipulates that any person who provides any public entertainment without a licence issued under the PEMA shall be guilty of an offence and liable to a fine not exceeding $10,000 upon conviction. Section 2(m) of the Schedule to the PEMA defines public entertainment to include, inter alia, any “lecture, talk, address, debate or discussion…in any place to which the public or any class of the public has access whether gratuitously or otherwise.”¹

It is undisputed that the appellants were physically present at the scene where the offences were committed, and that the offences took place at the locations where the public had access. It was also not disputed that the appellants did not apply for a licence.

The appellants raised four main arguments in the appeals before me: First, the appellants asserted their right to freedom of speech under Art 14 of the Constitution of the Republic of Singapore (“the Constitution”). Second, the appellants argued that the police, the Executive, and the Public Entertainments Licensing Unit’s (“PELU”) blanket policy of not granting licences under the PEMA to political parties was discriminatory and therefore unconstitutional, in contravention of the appellants’ right to equal protection of the law, under Art 12 of the Constitution. Third, the appellants contended that they were victims of bad faith and discriminatory enforcement of the PEMA. The appellants claimed to have modelled their activities to be similar to those conducted by hawkers and stall-owners at public places, but were singled out and targeted by the police. The appellants argued that their prosecution was discriminatory and a denial of equality contrary to the law enshrined in Art 12 of the Constitution. Fourth, the appellants contended that they were only making a sales pitch which did not amount to an “address” within the meaning of s 19 of PEMA. I shall consider each of the arguments in turn.

The Court’s decision Whether the PEMA contravenes the appellants’ asserted right to freedom of speech under Art 14 of the Constitution

Mr Chia Ti Lik (“Mr Chia”) represented the appellant, Dr Chee in MA 133/2008. However, his role as counsel for Dr Chee was limited to advancing the legal submission that the provisions of the PEMA are in violation of the freedom of speech enshrined in Art 14 of the Constitution. It is not denied that the same legal issue was raised and resolved in two earlier High Court decisions, Jeyaretnam Joshua Benjamin v Public Prosecutor and another appeal [1989] 2 SLR(R) 419 (“JBJ v PP”) and Chee Soon Juan v Public Prosecutor [2003] 2 SLR(R) 445 (“Chee Soon Juan v PP”). In both decisions, the High Court held that the freedom of speech under Art 14 of the Constitution is not an absolute right. Specifically, in both decisions, the High Court held that the enactment of the PEMA was permitted under Art 14(2)(a) of the Constitution. The High Court in Chee Soon Juan v PP made the following pertinent observations: 19 The right to freedom of speech is enshrined in art 14(1)(a) of our Constitution. However, this right is expressly made subject to the limitation in art 14(2)(a) of the Constitution, which reads as follows: (2) Parliament may by law impose - (a) on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence; ... 20 In any society, democratic or otherwise, freedom of speech is not an absolute right. Broader societal concerns such as public peace and order must be engaged in a balancing exercise with the enjoyment of this personal liberty. This is embodied in art 14(2)(a). I did not find the provisions of PEMA to be in any way contrary to our Constitution. Indeed, it seemed eminently clear that the enactment of PEMA was fully within the power of the legislature pursuant to the power granted to it by art 14(2)(a).

Dr Chee and Mr Yap both adopted Mr Chia’s submission on the alleged unconstitutionality of the PEMA for their respective appeals. Before me, Mr Chia’s legal submission was essentially the same arguments which were raised and subsequently rejected in the two earlier High Court decisions. In addition, Mr Chia drew my attention to the recent decision of the Court of Appeal of British Columbia in Vancouver (City) v Zhang [2010] BCCA 450 (“Vancouver v Zhang”) to mount a fresh challenge against the constitutionality of PEMA. The case concerned an application by the City Council of Vancouver for an injunction compelling Falun Gong practitioners to remove their billboards containing political expressions from a grassy portion of the city street in front of the Chinese consulate because they were in contravention of s 71 of the Street and Traffic By-Law (Revised By-law No 2849) (“the by-law”). The Court of Appeal of British Columbia held that s 71 of the by-law was unconstitutional as it was inconsistent with the freedom of expression guaranteed under s 2(b) of the Canadian Charter. A close examination of Vancouver v Zhang would reveal that it provides no assistance to the appellants in the appeals before me. First, the provisions of the Canadian Charter are quite different from that found in the Constitution of Singapore. Section 2(b) of the Canadian Charter provides the following:

2. Everyone has the following fundamental freedoms:

...

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication…

The freedom of expression under s 2(b) is, however, qualified by s 1 of the Canadian Charter which provides as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[emphasis in original]

The restriction under s 1 of “such reasonable limits prescribed by law” has been interpreted by the Canadian case law R v Oakes [1986] 1 SCR 103 to refer to the “minimal impairment requirement”. Therefore, under the Canadian regime, the freedom of expression guaranteed under s 2(b) of the Charter is subject only to restrictions prescribed by law provided it meets the minimum impairment requirement. The position in Singapore is, however, quite different. Art 14 is expressly made subject to the right of Parliament to impose such restrictions as it may consider necessary or expedient by reasons of, inter alia, interest of the security of Singapore or “public order”. Unlike the position in Canada, there is no requirement in Singapore for such restrictions to meet the minimal impairment requirement. Furthermore, there is no dispute that the PEMA was validly passed by Parliament pursuant to Art 14(2)(a) of the Constitution.

In Vancouver v Zhang, the court was persuaded to find that s 71 was unconstitutional because the City Council chose to maintain a complete ban against the use of structure for political expression. In the appeals before me, there is simply no evidence that a complete ban exist. The very fact that the PEMA specifically provides for a procedure to apply for a licence to provide public entertainment, which by definition includes making an address, would negate the existence of such a complete ban. As such, there is no merit whatsoever in the appellants’ renewed submission as regards the alleged unconstitutionality of the PEMA.

Whether the alleged discriminatory licensing policy provides a defence to the appellants

The appellants argued that, as members of a political party, they were subjected to an alleged discriminatory application and enforcement of the PEMA by the police authorities, the Executive and the PELU. The appellants contend that there exists an Executive policy to impose a blanket ban on the issuance of licences to political parties to make speeches, and that such a policy contravenes their right to equal protection under the law as guaranteed by Art 12(1) of the Constitution.

I find the appellants’ contentions to be wholly...