Chee Soon Juan and others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 22 February 2011
• Neutral Citation: [2011] SGHC 40
• Date: 22 February 2011
• Docket Number: Magistrate’s Appeals Nos 432–434 of 2009
• Published date: 23 February 2011
• Plaintiff Counsel: The appellants in person
• Hearing Date: 04 October 2010,22 November 2010,21 January 2011
• Defendant Counsel: Isaac Tan, John Lu Zhuoren and Thiagesh Sukumaran (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Constitutional Law,Criminal Law

Woo Bih Li J: Introduction

The appellants, namely Chee Soon Juan (“Dr Chee”), Chee Siok Chin (“CSC”) and Ghandi s/o Karuppiah Ambalam (“Ghandi”), were each convicted by a District Judge of one charge under r 5 of the Miscellaneous Offences (Public Order and Nuisance) (Assemblies & Processions) Rules (Cap 184, R 1, 2000 Rev Ed) (“the MOR”). The charge read as follows:

You, [name of appellant] are charged that you, on the 10th day of September 2006 at about 12.15 pm, in the vicinity of Raffles City Shopping Centre, North Bridge Road, Singapore, which is a public place, together with the [two other appellants and three other people, ie Tan Teck Wee (“Tan”), Jeffrey George (“Jeffrey”) and Harkirat Kaur d/o Harmit Singh (“Harkirat”)], did participate in an assembly intended to demonstrate opposition to the actions of the Government, which assembly you ought reasonably to have known was held without a permit under the MOR, and you have thereby committed an offence punishable under Rule 5 of the said Rules.

Dr Chee, CSC and Ghandi were each fined $1,000 (in default, one week’s imprisonment). Each of them has served the default sentence in lieu of payment of the fine. All three of them are appealing against their conviction and sentence on the ground that the District Judge has erred in fact and in law. The facts

On 10 September 2006 at or around 12.15pm, the appellants together with Tan, Jeffrey and Harkirat, had gathered in the vicinity of Raffles City Shopping Centre, near the entrance to City Hall MRT Station, and had, as a group, distributed flyers to members of the public moving about in the vicinity. They were spotted by police officers on special patrolling duties in conjunction with the World Bank and International Monetary Fund meeting then taking place in Singapore. The flyers which were being distributed contained the following words:

Tired of being a voiceless, 2nd class citizen in your own country without any rights? Sick of the Ministers paying themselves millions of dollars while they tell you to keep making sacrifices for Singapore? Then join us for the EMPOWER SINGAPOREANS RALLY & MARCH Saturday, 16 Sept 2006, 11 am Speakers’ Corner, Hong Lim Park FOR MORE INFORMATION, GO TO www.singaporedemocrat.org [emphasis in original]

The appellants, Tan, Jeffrey and Harkirat had not applied for and did not possess a permit to carry out the activity on 10 September 2006.

The law

The MOR was promulgated pursuant to the power granted to the Minister of Home Affairs by s 5(1) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“the MOA”). The purpose of the MOR was to ensure the maintenance of public order and to prevent congestion and annoyance caused by assemblies and processions held by all kinds of groups and organisations: see the statement of the Senior Minister of State for Home Affairs, Dr Lee Boon Yang, at the Second Reading of the Minor Offences (Amendment) Bill (Singapore Parliamentary Debates, Official Report (16 February 1989) vol 52 at col 689).

The appellants were charged under r 5 of the MOR, which provided as follows:

5. Any person who participates in any assembly or procession in any public road, public place or place of public resort shall, if he knows or ought reasonably to have known that the assembly or procession is held without a permit, or in contravention of any term or condition of a permit, be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000.

Rule 2(1) of the MOR defined an assembly or procession to which the MOR applied as follows:

2. —(1) Subject to paragraph (2), these Rules shall apply to any assembly or procession of 5 or more persons in any public road, public place or place of public resort intended —

(a) to demonstrate support for or opposition to the views or actions of any person;

(b) to publicise a cause or campaign; or

(c) to mark or commemorate any event.

[emphasis added]

As can be seen, the criteria in r 2(1)(a)-(c) do not differentiate between activities held to promote a particular cause or campaign from recreational, social and commercial activities.

Rule 2(2) of the MOR listed out assemblies and processions which were exempted from the MOR. None are applicable here.

Section 2 of the MOA defined a “public place” as “any place or premises to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission”.

Under the MOR, subject to the exceptions stated in r 2(2), an assembly (whether it involved commercial, political, social, recreational or other activities) intended to achieve any of the purposes listed in r 2(1)(a) – (c) was an assembly for which a permit was required if there were five or more participants. The police would then have the discretion whether to grant a permit when this was applied for.

The term “assembly” is not defined in the MOA or the MOR. However, the meaning of the word was explained by Yong Pung How CJ in Ng Chye Huay v Public Prosecutor [2006] 1 SLR(R) 157 (“Ng Chye Huay”) (at [47]–[49] and [52]): 47 … [the meaning of the term “assembly”], for the purposes of the offences committed by [the appellants in Ng Chye Huay], must thus be derived by looking at the mischief that the [MOA and the MOR (collectively referred to as “the legislation”)] was enacted to address, as well as comparing these provisions to the unlawful assembly provision found in the Penal Code [(Cap 224, 1984 Rev Ed)]. 48 A search in Hansard revealed that during a debate on the Minor Offences (Amendment) Bill … on 16 February 1989, one Member of Parliament articulated that the seriousness of the problem of assemblies stemmed from the propensity of participants of such gatherings to create trouble (Singapore Parliamentary Debates, Official Report (16 February 1989) vol 52 at col 699). … The amendment bill thus vested authority in the Minister to require permits for assemblies of more than five people. 49 In my opinion, the legislation was aimed at dealing with the misbehaviour of the persons gathered in an assembly of five or more, and such mischief can occur even if those gathered are engaged in varied activities. It is not necessary for every member of the assembly to be engaged in the exact same activity in order for the assembly to create trouble. It is sufficient that the people gathered can be identified as a collective entity and that they have a common purpose.

…

52 This reading is buttressed by examining the unlawful assembly provision found in s 141 of the Penal Code. … Similar to s 5 of the [MOA] and r 5 of the [MOR], s 141 of the Penal Code concerns itself with the potential mischief of a gathering or assembly of people. The offence in s 141 is defined by reference to the type of common object held by that assembly. It was clear to me that the concept of an undesirable assembly is closely linked to the common object of that assembly. In the instant case, the finding that the members of the group shared a common object was in no way negated by the fact that they were engaged in separate activities. …

[emphasis added]

I accept that an assembly is comprised of a group of persons gathered together as a collective entity with a common purpose even if the members of the group may be engaged in different activities.

For completeness I should mention that the MOR and s 5 of the MOA were repealed on 9 October 2009. Assemblies and processions in public places are now regulated by Part II of the Public Order Act 2009 (Act 15 of 2009). Nothing turns on this.

Decision on the appeals against conviction

Rules 2 and 5 of the MOR applied where there were (i) a group of five or more persons; (ii) in a public place; (iii) gathered together as a common entity; (iv) with a common purpose of demonstrating support for or opposition to the views or actions of any person, or publicising a cause or campaign, or marking or commemorating any event; (v) in circumstances in which they knew or ought reasonably to have known that the assembly was held without a permit or in contravention of any term or condition of a permit.

On appeal, the appellants did not dispute that (i), (ii), (iii) and (iv) were satisfied. I would, however, make some observations on the District Judge’s conclusion that the Government is a person within the meaning of r 2(1)(a) of the MOR (and therefore, that the flyers distributed by the appellants and others in their assembly, which were clearly targeted at and opposed to the alleged actions of Cabinet Ministers, violated r 2(1)(a)). The District Judge reached this conclusion because (1) s 2 of the Interpretation Act (Cap 1, 2002 Rev Ed) provides that a “person” includes “any company or association or body of persons, corporate or unincorporate”, and (2) a person in law is any entity that is capable of enjoying rights or is subject to duties enforceable at law (Central Christian Church v Chen Cheng [1994] 3 SLR(R) 342 at [1]). With respect, the first reason is inapplicable to the Government, while the second reason, if applied inexorably, would lead to the surprising result that the Government would be a “person” liable under criminal statutes. I would prefer to define “person” in r 2(1)(a) of the MOR with specific regard to its evidently broad scope. On this view, any identifiable entity, whether or not a legal person stricto sensu, would be a person for the purpose of r 2(1)(a).

Returning to the appeal, Dr Chee on behalf of the appellants raised the following further issues at the hearing on 22 November 2010: whether there must have been an imminent threat to public order before the appellants could be charged for an offence under r 5 of the MOR; whether the appellants ought reasonably to have known that a permit was required for their activity on 10 September 2006; even if...