Public Prosecutor v Chee Soon Juan and Others
| Jurisdiction | Singapore |
| Judge | Toh Yung Cheong |
| Judgment Date | 25 February 2010 |
| Neutral Citation | [2010] SGDC 128 |
| Court | District Court (Singapore) |
| Published date | 13 April 2010 |
| Year | 2010 |
| Plaintiff Counsel | Nor'ashikin Samdin & Ng Yiwen (Deputy Public Prosecutors) |
| Defendant Counsel | 1st to 5th accused in person |
| Citation | [2010] SGDC 128 |
| 25 February 2010 |
|
District Judge Toh Yung Cheong
1 Four accused persons, namely Dr Chee Soon Juan (“Dr Chee”), Ms Chee Siok Chin (“Ms Chee”), Mr Teoh Tian Jin (“Mr Teoh”) and Mr Yap Keng Ho (“Mr Yap”) claimed trial to a charge of participating in an attempt to hold a procession from the vicinity of Speakers’ Corner, Hong Lim Park to Parliament House without a permit. One of the accused persons, Mr Ghandi s/o Karupiah Ambalam (“Mr Ghandi”) declined to enter a plea and objected to a joint trial. As the charges all relate to the same offence and to the same incident, I allowed the Prosecutor’s application for the accused persons to be tried jointly. While Mr Ghandi did not enter a plea, the case against him proceeded pursuant to s.180(c) of the Criminal Procedure Code. For ease of reference, I reproduce the charge against the first accused below (as amended at the close of the prosecution case):
You, Chee Soon Juan, are charged that you on 16 September 2006 at about 12 noon, at the vicinity Speakers Corner, Hong Lim Park, North Canal Road, Singapore, which is a public place, together with others including:
(a) Chee Siok Chin
(b) Tan Teck Wee
(c) Jeffrey George
(d) Yap Keng Ho
(e) Ghandi s/o Karuppiah Ambalam
(f) Teoh Tian Jin
did attempt to participate in a procession from the vicinity of Speakers’ Corner to Parliament House intended to demonstrate opposition to the actions of the Government, when you ought reasonably to have known that the intended procession would have been held without a permit under the Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184), and you have thereby committed an offence punishable under Rule 5 of the said Rules read with section 511 of the Penal Code (Cap 224)
Outline
2 In the morning of 16 September 2006, a crowd had gathered at Hong Lim Park where Speakers’ Corner is situated. There were members of the public, the media, and police officers. Given the evidence adduced, it seemed likely that they heard or were informed of a planned march and rally beginning from Speakers’ Corner and also involving Parliament House, Suntec City, and the Istana. At some point of time around 12 noon, all the five defendants were together at a table and bench in Hong Lim Park but just outside the Speakers’ Corner boundary.
3 The prosecution’s case is that a permit was needed to carry out the planned march[note: 1] under the Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184) and that the police had previously informed Dr Chee that his application for a permit had been rejected. However, Dr Chee and the other defendants attempted to carry out the march knowing that they did not have a permit to do so. However, the offence was not completed as the police stopped them from leaving Hong Lim Park.
4 Despite a detailed and exhaustive cross-examination of the police witnesses by the defendants, Dr Chee, Ms Chee, Mr Ghandi, and Mr Teoh did not actually deny having an intention to march to Parliament House. However, it is their right to insist that the prosecution be put to strict proof that they did so. Instead, the main plank of their defence rests of the claim that the Police had acted unconstitutionally or ultra vires in refusing to grant them a permit. While Mr Yap had a separate defence, he also joined the other defendants in alleging a violation of the Constitution. In the first part of this judgment, I deal with the availability of a defence of Constitutional invalidity or ultra vires to the present charges.
5 In the second part of the judgment, I give my findings on the evidence regarding what occurred on 16 September 2006. First, I deal with the question of whether the evidence of the police witnesses at the scene was reliable. After determining this, I analyse whether the prosecution have proved beyond a reasonable doubt the conduct elements of the charge. In other words, whether the defendants had in fact attempted to participate in a procession from Hong Lim Park to Parliament House and whether they were aware that no permit had been granted.
6 In dealing with this issue, I devote a separate section of my judgment to Mr Yap’s defence. This was because his defence was different from the other accused persons. In short, Mr Yap claimed that he was present at Hong Lim Park for a wholly unrelated purpose and that he had an explanation for his proximity and association with the other defendants before, during, and after the attempted procession.
Part I: Decision to Refuse a Permit Unconstitutional or Ultra Vires
Was a permit required and was there a permit?
7 On 23 August 2006, the Police licensing department received an application from Dr Chee to conduct a march and rally. The route of the proposed march was Speakers’ Corner, Parliament House, Suntec City, and ending at the Istana. At each of the latter three locations, there was also supposed to be a rally
8 DSP Mark E Kwan Szer (PW2, “DSP Mark”) was the licensing officer who processed Dr Chee’s application. On 23 August 2006, Dr Chee’s application dated 22 August 2006 was forwarded to him. This application was for approval to conduct a march and rallies during the World Bank and IMF Meeting from 14 to 20 September 2006 with the starting point at Speakers’ Corner in Hong Lim Park. DSP Mark processed and application and rejected the application. The rejection was communicated to Dr Chee by post and e-mail on 28 August 2006 (Exhibits P3-1 to P3-4).
9 DSP Mark explained why the application was rejected:
There are two reasons. One is police’s policy position on outdoor demonstrations and processions is one of disallowance. The policy position has always been to disallow demonstrations and processions. We would not treat any application for such activities during the IMF-World Bank period differently. The second reason is also attributed to the route that the applicant had intended to take which would cover some important national buildings as well as the main venue for the IMF-World Bank meetings. Given that security should be at it’s highest at the IMF-World Bank meetings, we would not want any outdoor demonstration or procession to undermine security. I believe this policy position was made known through newspaper coverage as well, just before the IMF-World Bank meetings.[note: 2]
10 However, DSP Mark also noted that the policy of disallowing outdoor demonstrations and processions would apply, whether or not there is a major meeting going on.[note: 3] As the policy position was clear, DSP Mark made the decision himself as there was no need to refer the application to his superior.[note: 4]
Whether defence of Constitutional invalidity or ultra vires available as a defence to the criminal charge
11 In the present case, Dr Chee, Ms Chee, Mr Ghandi, and Mr Teoh have mounted a Constitutional challenge to the refusal to grant them a permit. The four defendants say that the act of not granting them a permit was unlawful and/or unconstitutional because it was based on a policy that “Outdoor processions and demonstrations are disallowed whether or not there is a major meeting going on.” Therefore, the defendants argue that it was not possible to commit the offence of holding a procession without a permit because the decision to refuse them a permit was invalid.
12 There is a preliminary issue that has to be considered first. There is a High Court decision that says that if a defendant feels that a refusal to grant permission is unlawful or unconstitutional, the proper recourse is to challenge the refusal in a court of law. In Chee Soon Juan v PP
Even if the protocol was unconstitutional, it had nothing to do with the appellant’s commission of the offence. More precisely, even if the protocol was unconstitutional, the appellant would not have been justified in leaving the country. He has to first show and have the court declare that the protocol was unconstitutional, because every rule, regulation, and law is deemed valid until declared otherwise by the court. Whether the protocol was valid or not and whether it had been fairly applied to the appellant is a matter of a separate legal inquiry. It cannot be inquired in the midst of a criminal prosecution. (emphasis added)
13 Similar views were expressed in the English case of Smith v. East Elloe Rural District Council [1956] A.C. 736, 769-770 , where Lord Radcliffe made the following observation in relation to a compulsory purchase order:
An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
14 Similarly Lord Diplock in Hoffmann-La Roche & Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C. 295, 366 remarked:
before its validity has been pronounced on by a court of competent jurisdiction . . . All that can usefully be said is that the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question. (emphasis added)
15 This presumption of legality appears to dispose of the defendant’s argument that the refusal to grant a permit was based on an unlawful policy: if the defendants had failed to apply for to the High Court for Judicial...
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