GCP (a minor) (suing by her father and litigation representative, GCQ) and others v GCS

• Jurisdiction: Singapore
• Judge: Patrick Tay Wei Sheng
• Judgment Date: 13 May 2020
• Neutral Citation: [2020] SGDC 122
• Court: District Court (Singapore)
• Docket Number: Suit No 3430 of 2019 (Summons No 4689 of 2019)
• Year: 2020
• Published date: 23 May 2020
• Hearing Date: 22 January 2020,20 March 2020
• Plaintiff Counsel: Kok Yee Keong (Eversheds Harry Elias LLP)
• Defendant Counsel: Tan Zhiyi, Jeremy and Sonia Joy Singh (WongPartnership LLP)
• Citation: [2020] SGDC 122

Deputy Registrar Patrick Tay Wei Sheng:

The defendant (the “School”) is an international school in Singapore. It offers classes from Kindergarten to Grade 12. The 1st plaintiff, [GCP], was at the material time a Grade 1 student with the School. The 2nd plaintiff and the 3rd plaintiff (collectively, the “Parents”) are the parents of [GCP].

On 12 March 2018, while in the School and during school hours, [GCP] was allegedly assaulted at her groin area by a male classmate, [X]. At that time, both of them were 7 years of age. [GCP] now claims against the School in negligence for failing to provide her with a safe schooling environment. The Parents also claim against the School for breach of the enrolment contract in respect of their enrolment of [GCP] in the School.

The School applied for three types of relief to limit the publication of information about the substantive proceedings (District Court Suit No. 3430 of 2019): enjoining the publication of any information relating to the proceedings (the “Gag Order”) having the entirety of the proceedings heard In Camera (the “In-Camera Order”); and sealing all the records of the proceedings (the “Sealing Order”).

The School based this application on the public interest in protecting the identity of [X], a minor child, given the severity of the allegations made against him in these proceedings. Although [X] is not a party to these proceedings, the School submitted that it was not only entitled but was in fact obliged to bring this application because of its responsibility, as an educational institution who had charge of [X] at the material time, for his welfare.

The plaintiffs resisted the application and contended that a redaction of the names of [X] and [GCP] from the record of the proceedings would suffice. The plaintiffs also offered to assist with any such redaction.

On 20 March 2020, I granted the Gag Order to the extent of the identities of [X] and [GCP] and in the terms of s 35(1) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (the “CYPA”). I also ordered the redaction of all references to [X] and [GCP] in the substantive proceedings. But I did not grant the Sealing Order or the In-Camera Order.

No appeal was filed against this decision within the time limited for doing so. But this summons raised novel issues about the application of the statutory gag order in s 35(1) of the CYPA to a child who is neither a party to nor a witness in the proceedings. I thus provide the grounds of my decision.

Open justice

The principle of “open justice” is central to the rule of law. It ensures that “justice should not only be done, but should manifestly and undoubtedly be seen to be done” (R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259). This promotes public confidence in the administration of justice (Attorney-General v Leveller Magazine Ltd [1979] AC 440 (“Leveller”) at 449–450, per Lord Diplock):

… the English system of administering justice does require that it be done in public: Scott v. Scott [1913] AC 417. If the way that the courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public conf‌idence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.

The principle of open justice is given statutory recognition in Singapore through s 8(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) and s 7(1) of the State Courts Act (Cap 321, 2007 Rev Ed):

Sittings in camera

8.—(1) The place in which any court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access.

Sittings in camera , etc.

7.—(1) The place in which any State Court is held shall be deemed an open and public court to which the public generally may have access.

But as Lord Diplock continued in Leveller at 450, “since the purpose of the general rule [of open justice] is to serve the ends of justice it may be necessary to depart from it [based on] the nature or circumstances of the particular proceeding”. A departure would be justified where “the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament had made some statutory derogation from the rule.”

In Singapore, there is a clear public policy of safeguarding the welfare of children involved in court proceedings by protecting them from identification through the court proceedings. So strong is the public policy underpinning this safeguard that it outweighs the principle of open justice on which the legal system otherwise operates. The safeguard extends even to criminal proceedings, where the public interest in open justice is the strongest and the law permits the publication of the identity of accused persons, despite the damage that such publication can do to an accused person who is subsequently acquitted (Singapore Parliamentary Debates, Official Report (14 May 2012) vol 89 at pp 188–189 (K Shanmugam, Minister for Law):

Our legal system operates on the principle of public justice. Accused persons are publicly tried. The verdict of the court is publicly announced. Reporting of ongoing proceedings is allowed so long as it does not prejudice the proper administration of justice. The exceptions to the principle are limited – they mainly apply to protect sensitive information relating to national security, as well as the identities of young persons. …

Lawyers from the Bar would know that the publicity from a criminal trial is often very damaging to the accused, even if he is ultimately acquitted. … The solution to adverse publicity during ongoing proceedings must be to increase public awareness that a charge is not the same as a conviction, and that an accused person is presumed to be innocent until he is found guilty by a court of law. But I accept and recognise that this is a significantly uphill task.

[Emphasis added]

This public policy of protecting children and young persons involved in court proceedings from identification applies even if the child has been convicted of a serious offence. In Public Prosecutor v ASR [2019] 3 SLR 709, a minor was found to have raped his victim after threatening to pull a knife on her. Woo Bih Li J held, by reference to s 35(1)(a) of the CYPA, that it was in the interests of justice to restrain the publication of the name and other identifying particulars of the minor (at [49]).

Separately, the Defence applied under s 35(1)(a) of the CYPA for an order prohibiting the publication of the Accused’s name and other identifying particulars. Sections 35(1)(a) and 35(2) of the CYPA provide, broadly speaking, that no person shall publish the identifying particulars of a “child or young person” concerned in any court proceedings, unless the court or the Minister is satisfied that it is in the interests of justice to order otherwise. Section 2(1) of the CYPA defined a “young person” to mean “a person who is 14 years of age or above and below the age of 16 years”. In this case, the Defence argued that the protective policy of the CYPA applied as the Accused had committed the present offences when he was 14 years of age. The Prosecution quite fairly pointed out that the Accused was 14 years of age when he was first produced in the Youth Court. Thus, their position was that unless this court lifted it, the gag order would “still exist”. In any event, the Prosecution made no submissions on whether the gag order should be lifted or not. In the circumstances, I was of the view that s 35(1)(a) of the CYPA still applied.

This decision was eventually affirmed on appeal in Public Prosecutor v ASR [2019] 1 SLR 941, and the prohibition on publication of the name and other identifying details of the minor continued to apply even during the hearing of the appeal.

Protecting the identity of a child involved in court proceedings insulates him from media coverage of his offences and facilitates his rehabilitation and re-integration into society. Media coverage of juvenile offences that identifies the offender often produces negative consequences, as elucidated by Nominated Member of Parliament Prof Lim Sun Sun at the Second Reading of the Children and Young Persons (Amendment) Bill 2019 (No 22 of 2019). First, the public shaming of the offender can heighten tensions within his family and fracture the very unit of society that is pivotal to his rehabilitation. Second, the public shaming can also cause the offender to be ostracised by his peers and teachers, and thus cripple community-based rehabilitation measures. Third, the public record of the offence, particularly in this digital age where electronic records are durable and replicable, compromises the education and employment prospects of the offender. Perversely, too, the publicity can give the offender celebrity status, encourage him to re-offend, and inspire other young persons to commit similar offences (Singapore Parliamentary Debates, Official Report (4 September 2019) vol 94).

Recognising that “labelling [a child] as an ex-offender makes reintegration more difficult for him or her”, Parliament has moved to enhance the protection of the identity and privacy of young offenders (Singapore Parliamentary Debates, Official Report (5 September 2019) vol 94...