Liong Kok Keng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 10 August 1996
• Neutral Citation: [1996] SGHC 162
• Docket Number: Magistrate's Appeal No 65 of 1996
• Date: 10 August 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: S Asogan (R Raman & Co)
• Citation: [1996] SGHC 162
• Defendant Counsel: Bala Reddy (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Whether ministerial orders banning publications of religious group ultra vires or unconstitutional,Right to religious freedom,Fundamental liberties,Extent of right,Discretion of trial judge not to allow application,Questions already dealt with in earlier High Court and Court of Appeal cases,s 3 Undesirable Publications Act (Cap 338),Reference to High Court,Constitutional Law,Constitutional questions,Whether questions ought to be referred to High Court,art 15(1)(4) Constitution of the Republic of Singapore

Cur Adv Vult

The appellant was charged with two offences under s 4(2) of the Undesirable Publications Act (Cap 338) (the Act) by having in his possession publications which were prohibited under s 3(1) of the Act vide Gazette Notification No 123 dated 14 January 1972 (Order 123) and Gazette Notification No 405 dated 4 February 1994 (Order 405).

These Gazette Notifications prohibited the importation, sale and circulation of all materials published or printed by the Watch Tower Bible and Tract Society (WTBTS) and the International Bible Student`s Association (IBSA). In the district court the appellant was convicted and for each offence fined $1,000 and in default one week`s imprisonment. The appellant declined to pay his fine and in default served his prison term.

The facts were not in dispute. On 4 May 1995 the appellant, driving car registration number SBZ 1165R with five other passengers, was stopped at the Inward Car Bay of the Woodlands checkpoint. A search was conducted and books, pamphlets and compact discs, all of which formed the subject matter of the first charge were recovered from the boot of the car. The next day, the police raided the appellant`s house at Block 523 Bukit Batok Street 52, #12-703 and seized a list of items which formed the subject matter of the second charge.

It was not disputed that all the publications and materials were published by WTBTS or IBSA. Moreover the appellant had voluntarily given two statements to the police. He admitted that he had collected the materials (which formed the first charge) from Johor Bahru, placed them in the car and drove into Singapore. He intended to introduce the materials to his friends here. He also admitted that the exhibits seized from his home during the raid on 5 May 1995 belonged to him and were for his personal use.

The appellant belonged to a sect known as the Jehovah`s Witnesses. One of the fundamental doctrines of the sect is their belief that Satan is the God of the world. As such they maintain a complete separation from governments and regard world powers and political parties as the unwitting allies of Satan. Thus, they refuse to salute the flag of any nation or perform any form of national service or participate in public elections.

This resulted in the sect, the Singapore Congregation of Jehovah`s Witnesses, being deregistered on 14 January 1972 by the Singapore Government. Their activities also prompted the Minister for Information and the Arts (MITA) (then the Minister for Culture) to ban all publications by WTBTS and IBSA via Orders 123 and 405.

At the close of the prosecution case in the trial below, the defence made an application under s 56A of the Subordinate Courts Act (Cap 321) for the following constitutional questions to be referred to the High Court:

(1) whether individual Jehovah`s Witnesses professing and practising their beliefs as Jehovah`s Witnesses have the right to such publications which are religious in nature and are necessary for the practice of their religion as granted under art 15(1) of the Constitution;

(2) whether Gazette Notifications Nos 123 dated 14 January 1972 and 405 dated 4 February 1994 apply to such religious publications as are required by individual persons professing the religion of Jehovah`s Witnesses in accordance with art 15(1) of the Constitution;

(3) whether the `act` in the context of religious publications of the religion of Jehovah`s Witnesses is to be determined by reference to the contents of such religious publications before such religious publications come within the exception of `any general law relating to public order` under art 15(4) of the Constitution and therefore the adherents of such a religion do not have a constitutional right to possess such publications;

(4) whether the acts of the publisher must be ascertained where all the publications of the particular publisher are prohibited to determine violations of any general law relating to public order; and

(5) if the refusal of eligible male Jehovah`s Witnesses to do military service on the basis of this religion of Jehovah`s Witnesses is the basis for invoking art 15(4) of the Constitution to prohibit all religious publications by the publishers WTBTS and IBSA then whether the contents of such publications must be examined in relation to such reference to military service before the said publication comes within the exception under art 15(4) of the Constitution.

Suffice to say, the trial judge dismissed the appellant`s application. In addition the trial judge found that the elements of the offences which the appellant was charged with had been proven beyond reasonable doubt and the appellant was convicted and sentenced accordingly. The appellant being dissatisfied with the conviction appealed.

In gist the appellant claimed that the trial judge had erred in not referring the Constitutional questions raised before him to the High Court pursuant to s 56A of the Subordinate Courts Act (Cap 321). In particular, counsel for the appellant contended that Orders 123 and 405 should be void in so far as they prohibited the publications of religious materials necessary for the practice of the Jehovah Witnesses` faith as it was contrary to art 15 of the Constitution of the Republic of Singapore.

At the outset I should stress that it is in the discretion of the trial judge whether to stay proceedings to allow constitutional questions to be referred to the High Court. As I had earlier stated in Chan Hiang Leng Colin & Ors v PP [1994] 3 SLR 662 , the purpose of the discretion is to prevent unnecessary stays of proceedings each time a party purports to raise a constitutional issue. The merits of the case can then be considered by the trial judge before deciding whether such a reference ought to be made to the High Court.

In the present case, the questions raised by the appellant, albeit phrased differently, had...