Ng Chye Huay and Another v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 17 October 2005
• Neutral Citation: [2005] SGHC 193
• Citation: [2005] SGHC 193
• Defendant Counsel: Hay Hung Chun and Stanley Kok (Deputy Public Prosecutors)
• Published date: 17 October 2005
• Plaintiff Counsel: Alfred Dodwell (Alfred Dodwell)
• Date: 17 October 2005
• Docket Number: Magistrate's Appeals Nos 54 and 55 of 2005
• Court: High Court (Singapore)
• Subject Matter: Whether legislation permitting absolute discretion to issue permits and certificates arbitrary,Whether appellants' convictions should be overturned,Whether appellants' rights to fundamental liberties of freedom of association and freedom of expression violated,Appellants convicted of participating in an assembly without permit,Article 14 Constitution of the Republic of Singapore (1999 Rev Ed),Equality before the law,Criminal Law,Statutory offences,Fundamental liberties,Miscellaneous Offences (Public Order and Nuisance) Act,Films Act,Article 12 Constitution of the Republic of Singapore (1999 Rev Ed),Constitutional Law,Section 5(1) Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed), r 5 Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184, R 1, 2000 Rev Ed),Appellants convicted of possession and distribution of uncertified films,Section 21 Films Act (Cap 107, 1998 Rev Ed)

1 The first appellant, Ng Chye Huay (“Ng”), was convicted by Magistrate Wong Li Tien on a total of eight charges:

(a) one charge for participating in an assembly that was held without a permit under r 5 of the Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184, R 1, 2000 Rev Ed) (“the Rules”) read with s 5(1) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“the Act”);

(b) two charges for possessing uncertified video compact discs (“VCDs”) under s 21(1)(a) punishable under s 21(1)(i) of the Films Act (Cap 107, 1998 Rev Ed); and

(c) five charges for distributing uncertified VCDs under s 21(1)(b) read with common intention punishable under s 21(1)(ii) of the Films Act, read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed).

2 The second appellant, Cheng Lu Jin (“Cheng”), was convicted on a total of seven charges:

(a) one charge for participating in an assembly that was held without a permit under r 5 of the Rules read with s 5(1) of the Act;

(b) one charge for possession of uncertified VCDs under s 21(1)(a) punishable under s 21(1)(i) of the Films Act; and

(c) five charges for distributing uncertified VCDs under s 21(1)(b) read with common intention punishable under s 21(1)(ii) of the Films Act, read with s 34 of the Penal Code.

3 Ng was sentenced to a total fine of $20,000 or 20 weeks’ imprisonment in default, while Cheng was sentenced to a total fine of $24,000 or 24 weeks’ imprisonment in default. Being dissatisfied with the outcome of the trial, both came before me to appeal against conviction and sentence.

Undisputed facts

4 Ng and Cheng were Falungong practitioners who committed a series of offences on four occasions, despite numerous warnings from and exchanges with the police. Most of the offences committed by Ng corresponded to those committed by Cheng. The remaining offences, committed by Ng and Cheng in their individual capacities, were treated as stand-alone charges. In examining the legal issues involved in the appeal, I found it useful to first set out the relevant facts chronologically, before proceeding to analyse the charges against the appellants.

The first incident: 23 November 2002

5 On 23 November 2002, Ng was found to be in possession of 12 uncertified VCDs while she was practising Falungong at the Esplanade Park. The investigating officer on that day was Assistant Superintendent Kevin Teoh (“ASP Teoh”), who at the time was attached to the Central Police Division.

6 ASP Teoh arrived at the Esplanade Park at about 5.25pm with his colleague in response to a police message. He observed a gathering of about ten persons. Six women and two men were seated on the floor meditating. Two other women were standing and distributing flyers, and one of them was also distributing VCDs which had been placed in a stack on the floor beside her. ASP Teoh approached the woman distributing both flyers and VCDs to ask if the VCDs were certified. She answered in the negative, whereupon ASP Teoh seized a total of 12 VCDs from her and issued an acknowledgement slip to her. This woman was identified at trial as Ng, the first appellant. The second appellant, Cheng, was not involved in this incident.

The second incident: 27 December 2002

7 About a month after the first incident, Ng and Cheng sent five packages to various officers in the Singapore Police Force. Each of the packages contained an identical cover letter written in Mandarin, two uncertified VCDs and reading material on Falungong. Ng had composed the text of the cover letter, while Cheng had typed it out. Both had appended their signatures at the end of the letter.

8 The cover letter was translated into English by the Chinese translator of the Criminal Investigation Department, Mr Ong Shieu Tien, and tendered to the court by the Prosecution. The main text of the letter was as follows:

Hi! We are Falungong practitioners. For the past three years we have been practising Falungong near the site of the Merlion. We have also been distributing informative materials of Falungong to tourists and residents at various places. Unfortunately, some members of the public misunderstood our good intentions and alerted the police to our activities. These members of the public do not have a real understanding of Falungong. They believe all the fabricated news they see in the media and utter libelous remarks about Falungong to others. This is not good for their lives [sic].

We are sending you some materials on Falungong. We hope you would take a look at them. Thank you.

9 The packages were sent to Tiong Bahru Neighbourhood Police Post, Tanjong Pagar Neighbourhood Police Post, the Head of Investigations, and the Commander as well as the Deputy Commander of the Central Police Division Headquarters. The police officers who received these packages followed their established internal procedures of passing the packages onto their colleagues in charge.

The third incident: 10 February 2003

10 On 10 February 2003, approximately six weeks after sending the packages to the police, Cheng was practising Falungong with a group at the Esplanade Park when police officer Assistant Superintendent Shee Tek Tse (“ASP Shee”) approached her group. ASP Shee testified that there was a stack of 26 VCDs on the ground in front of the group. When he asked the group to whom the VCDs belonged, Cheng acknowledged that they belonged to her. Subsequently, an acknowledgment slip was issued for the VCDs, and when ASP Shee asked Cheng to inspect the VCDs and confirm that they were the same ones listed in the acknowledgement slip, she did so, and signed on the slip accordingly.

The fourth incident: 23 February 2003

11 Thereafter, on 23 February 2003, the police responded to a “999” call relating to Falungong activities at the Esplanade Park. The police team was led by Mr Wendell Chua (“Mr Chua”), who at the time was the Senior Investigating Officer with the Central Police Division. Mr Chua testified that he observed a gathering of seven persons, which included Ng and Cheng, for about ten minutes. Five persons were seated on the ground meditating while Ng and Cheng were distributing flyers to member of the public (Ng did not dispute this but Cheng denied that she had been distributing flyers at the relevant time). The group had put up two banners and various displays publicising the Falungong movement.

12 Upon approaching the group, Mr Chua first spoke withCheng, asking if the group had obtained a permit to assemble. Cheng replied that they had not, and that it was pointless to apply for one as the application would have been rejected anyway. Ng then went over to speak to Mr Chua, upon which he advised Cheng and Ng to remove their displays and leave the area immediately. However, Ng only removed one banner and refused to leave the area. Mr Chua thus proceeded to take down the particulars of the appellants and seized some other items that were displayed, including six uncertified VCDs that Ng had acknowledged ownership of. Ng signed the acknowledgement slip that Mr Chua issued for the six VCDs. Mr Chua’s testimony was corroborated by Assistant Superintendent Eugene Oei (“ASP Oei”), who was also at the scene.

The charges against the appellants

13 I will deal with the issues on appeal by dividing the offences chronicled above into three groups:

(a) the charges against Ng and Cheng for assembling without a permit on the day of the fourth incident ("the assembly offences");

(b) the charges against Ng and Cheng for their joint effort in the distribution of letters and uncertified VCDs on the day of the second incident (“the distribution offences”); and

(c) the charge against Ng for possession of uncertified VCDs during the first and fourth incidents and Cheng’s charge for possession of uncertified VCDs during the third incident (“the possession offences”).

The assembly and distribution offences are common to both Ng and Cheng, while the possession offences are particular to each of the appellants.

The trial and decision below

The assembly offences

14 The relevant provisions are r 5 of the Rules read with s 5(1) of the Act. Section 5(1) of the Act states:

The Minister may make rules —

(a) regulating assemblies and processions in public roads, public places and places of public resort;

(b) providing for the grant of permits for holding assemblies and processions in public roads, public places and places of public resort, and the fees to be charged therefor;

(c) for keeping order and preventing obstruction or inconvenience in public roads, bridges, landing places, and all public places and places of public resort; and

(d) prescribing the punishment by a fine not exceeding $5,000 or imprisonment for a term not exceeding 3 months or both for any act or omission in contravention of the provisions of any such rules.

Rule 5 of the Rules states:

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.

Additionally, r 2(1) of the Rules states:

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.

15 Counsel for the appellants advanced a number of arguments at trial against this charge. Firstly, he averred that Ng and Cheng did not remove their displays and leave the Esplanade Park area because Mr Chua, the police officer who arrived at the scene, did not properly identify himself as a police officer. The trial judge dismissed this...