PP v Yue Mun Yew Gary

• Jurisdiction: Singapore
• Judgment Date: 14 September 2012
• Date: 14 September 2012
• Docket Number: Magistrate's Appeal No 58 of 2012
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Yue Mun Yew Gary

Defendant

[2012] SGHC 188

Quentin Loh J

Magistrate's Appeal No 58 of 2012

High Court

Criminal Law—Offences—Public tranquility—Respondent making graphic posts online—Whether s 267C Penal Code (Cap 224, 1985 Rev Ed) created strict liability offence—Whether offence of inciting violence online crossed custodial threshold—Section 267C Penal Code (Cap 224, 1985 Rev Ed)

The respondent (‘the Respondent’) was charged and convicted under s 267C of the Penal Code (Cap 224, 2008 Rev Ed). On National Day, 9 August 2010, the Respondent had posted a comment on the ‘Wall’ of Temasek Review's Facebook page containing a link to a You Tube video entitled ‘Sadat Assassination’. The video depicted the assassination of Egypt's former President, Muhamad Anwar al-Sadat, on 6 October 1981 during Egypt's annual Victory Day parade. The post also included the comment that: ‘We should re-enact a live version of this on our own grand-stand during our national's parade!!!!!!’ Following this a series of comments were exchanged with another user wherein the Respondent stated that if the ruling government's ‘political downfall is not within grasp, we should know what and how next to escalate it’. The Respondent also wrote that he was ‘sure we all want the physical removal of any influence of the incumbents from the face of the earth’.

A complaint against the post was lodged on 1 September 2010, and the Respondent was arrested and charged on 19 January 2012. Following a two-day hearing he was convicted and sentenced to a fine of $6,000 (and six weeks' imprisonment in default of payment) on 12 March 2012. The Prosecution appealed against this sentence on the grounds that the fine was manifestly inadequate and pressed for a custodial sentence of at least nine months' imprisonment.

Held, allowing the appeal:

(1) Section 267C was conspicuously silent on the issue of the offender's intention, and it was settled law that the mere omission of a mens rea requirement did not automatically entail strict liability. It could not have been Parliament's intention to criminalise such a wide swath of content even though the potential for harm would probably only arise in certain cases. The history of s 267C also supported the presumption of mens rea, as the provision traced its lineage through the Sedition Ordinance into the Seditious Publications Ordinance. As such, the learned district judge below erred in finding that s 267C created an offence of strict liability. Nevertheless, there could be no question that the Respondent had intended to incite violence with his post, and was correctly convicted: at [14], [23], [24], [31] to [33], [39] and [40].

(2) The severity of the punishment meted out under s 267C had to first and foremost be yoked to the seriousness of the incitement within the particular context of its creation, as apart from the actual outcome produced. In the context of the present case, the Respondent's post exemplified an abuse of the internet, wherein the potential impact of any statement was greatly magnified - it was therefore important to send a strong signal that the internet was not an entirely unregulated space wherein calls to violence were treated as an acceptable mode of communication. Further, in this case the dominant purpose of the Respondent's post was no more than to depict and suggest an act of violence against officials at a public parade. The Respondent's conduct could not be written off as merely frivolous. It was a targeted outburst which was timed to coincide with National Day celebrations, and would appear to any reader to have been made in all seriousness. After having considered and weighed all the circumstances of the case, a fine of $6,000 would be manifestly inadequate and the Respondent's sentence was enhanced to two months' imprisonment: at [44], [54], [61], [62] and [72].

[Observation: ‘Incitement’ was far more than just to persuade or suggest or, at a level up, to stir up or to arouse. At its core, it meant to instigate, to move to action, to rouse, to spur or to stimulate vigorously into action by, as a prime example, making an inflammatory speech: at [24].

As it was important that the vital veneer of society was not eroded, a custodial sentence of three months' imprisonment should be the starting point for s 267C and other related offences, even in times of social stability. In different times and circumstances, the term of imprisonment could be far longer: at [64].]

Angliss Singapore Pte Ltd v PP [2006] 4 SLR (R) 653; [2006] 4 SLR 653 (folld)

Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR (R) 453; [2007] 2 SLR 453 (refd)

Leong Mun Kwai v PP [1971-1973] SLR (R) 707; [1972-1974] SLR 459 (refd)

Lim Chin Aik v R [1963] AC 160 (refd)

PP v Koh Song Huat Benjamin [2005] SGDC 272 (refd)

PP v Lin Kok Joo [2006] SGDC 253 (refd)

PP v Ong Kian Cheong [2009] SGDC 163 (refd)

PP v Ooi Kee Saik [1971] 2 MLJ 108 (refd)

PP v Param Cumaraswamy [1986] 1 MLJ 512 (refd)

PP v Tan Fook Sum [1999] 1 SLR (R) 1022; [1999] 2 SLR 523 (refd)

PP v Teo Kwang Kiang [1991] 2 SLR (R) 560; [1992] 1 SLR 9 (refd)

R v Blackshaw [2012] 1 WLR 1126 (refd)

R v Liam Stacey (Appeal No: A 20120033 of the Swansea Crown Court) (refd)

Tan Cheng Kwee v PP [2002] 2 SLR (R) 122; [2002] 3 SLR 390 (folld)

Wallace-Johnson v R [1940] 1 AC 231 (refd)

Yoganathan R v PP [1999] 3 SLR (R) 346; [1999] 4 SLR 264 (refd)

Criminal Procedure Code 2010 (Act 15 of 2010) s 23 (1)

Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1990 Rev Ed) s 13 (f)

Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) s 13, 13 A-13 D

Penal Code 1871 (SS Ord No 4 of 1871) s 124 A

Penal Code (Cap 119, 1955 Rev Ed) s 151 A

Penal Code (Cap 224, 2008 Rev Ed) s 267C (consd) ;ss 107, 268, 298, 504, 505, 505 (b)

Sedition Act (Cap 290, 1985 Rev Ed) ss 3 (1) , 3 (3) , 4 (1) (a)

Sedition Ordinance 1938 (SS Ord No 18 of 1938) s 3 (consd)

Seditious Publications Ordinance 1915 (SS Ord No 11 of 1915) s 3 (consd)

Undesirable Publications Act (Cap 338, 1998 Rev Ed) ss 6 (1) , 6 (2)

Undesirable Publications Ordinance 1938 (SS Ord No 19 of 1938) s 4 (consd)

Criminal Code (Cap 9, 1963 Rev Ed) (Gold Coast) s 326 (8)

Ng Yiwen and Sarah Ong (Attorney-General's Chambers) for the appellant

N Sreenivasan and S Balamurugan (Straits Law Practice LLC) for the respondent.

Judgment reserved.

Quentin Loh J

1 Gary Yue Mun Yew (‘the Respondent’), has the unfortunate and dubious distinction of being the first person to be charged and convicted under s 267C of the Penal Code (Cap 224, 1985 Rev Ed) (‘the Penal Code’). It is surprising to note that this offence of incitement to violence has been on our statute books for over half a century. Section 267C reads:

Making, printing, etc., document containing incitement to violence, etc.

267C.Whoever-

1. (a) makes, prints, possesses, posts, distributes or has under his control any document; or

2. (b) makes or communicates any electronic record,

containing any incitement to violence or counselling disobedience to the law or to any lawful order of a public servant or likely to lead to any breach of the peace shall be punished with imprisonment for a term which may extend to 5 years, or with fine, or with both.

2 The Respondent claimed trial and was convicted on two charges after a two-day trial. He was sentenced to a fine of $6,000 (or six weeks' imprisonment in default of payment) in DAC 22568/2011 and $2,500 (or two weeks' imprisonment in default of payment) in DAC 22569/2011. The present appeal concerns only the sentence for the first charge, DAC 22568/2011. The Prosecution appeals on the ground that the fine of $6,000 was manifestly inadequate and is pressing for a custodial sentence of between six to 12 months' imprisonment.

The background facts

3 The relevant facts are not in dispute. On National Day, 9 August 2010, at 2.57 pm, the Respondent posted a comment on the ‘Wall’ of Temasek Review's Facebook page. This post contained a link to a You Tube video entitled ‘Sadat Assassination’. The video depicted the assassination of Egypt's former President, Muhamad Anwar al-Sadat, on 6 October 1981 during Egypt's annual Victory Day parade. The Respondent's accompanying comment read: ‘We should re-enact a live version of this on our own grand-stand during our national's parade!!!!!!’

4 Following the Respondent's post, a series of comments were exchanged between the Respondent and one ‘Ng Jimmy’:

Ng Jimmy:	@Gary, are you a PAP agent? ... =) trying to incite rebellion and revolution on this site so that the govt will have an excuse to take down this site? Or scare online readers with TR extremism? ...
Gary Yue:	If their political downfall is not within grasp, we should know what and how next to escalate it.
	Regardless, if self-censoring is the spirit of self-preservation is the sum of the game here, then even the cause of this site will come to nou ...
Ng Jimmy:	@Gary. Our Singapore citizens will vote with Strong hears and Clear minds this coming Election. We will not go down the slippery and treacherous path walked by the govt in their unrelenting pursuit of wealth and unlimited powers ...
Gary Yue:	Like-wise.
	But in essence, deep down in our hearts, if not for conscience or any other moral belief's sake, I am sure we all want the physical removal of any influence of the incumbents from the face of the earth. Just that we stop short of ...

5 On 1 September 2010, an informant lodged a police report which stated that:

On 9 August 2010 at about 10.50 pm, whilst surfing the internet, I came across postings that advocated the use of violence on public officials on a Facebook page. The author's picture also depicted an act of violence and I felt particularly concerned after reading the recent...