Public Prosecutor v Yan Jun

• Jurisdiction: Singapore
• Judge: Kaur Jasvender
• Judgment Date: 22 June 2016
• Neutral Citation: [2016] SGMC 24
• Court: Magistrates' Court (Singapore)
• Hearing Date: 16 June 2016,09 May 2016,26 May 2016
• Docket Number: MAC 903277-78 of 2016
• Plaintiff Counsel: G Kannan, Alexander Woon (9 May 2016 & 16 June 2016) and Yang Zhiliang (26 May 2016) (Deputy Public Prosecutors)
• Defendant Counsel: Accused in person
• Published date: 24 June 2016

District Judge Kaur Jasvender:

The accused claimed trial to two charges. The first charge is for an offence of taking part in an assembly which he ought reasonably to know was prohibited under section 15(2) of the Public Order Act (Cap 257A, 2012 Rev Ed) (‘POA’), which reads:

that you, on 2 March 2016 at about 10.02am, at Istana Park, Singapore, did take part in an assembly which you ought reasonably to know was prohibited by an order under Section 12(1) of the Public Order Act, Chapter 257A, to wit, by demonstrating opposition to the actions of a group of persons, namely, the Singapore judiciary, by displaying placards stating, “No Judicial Corruption in the Supreme Court of Singapore” and “抗议新加坡高等法院司法不公” which means “Protest against High Court of Singapore for miscarriage of justice” in English language, and you have thereby committed an offence punishable under Section 15(2) of the same Act.”

The second charge is for an offence of taking part in an assembly without a permit under section 16(2)(a) POA. It reads:

that you, on 13 April 2016 at about 4.25pm, at High Street Centre along North Bridge Road, Singapore, did take part in a public assembly without permit, to wit, by demonstrating opposition to the actions of a group of persons, namely, the Singapore judiciary, by displaying placards stating “NO JUDICIAL CORRUPTION IN SUPREME COURT OF SINGAPROE” and “抗议新加坡高等法院司法不公” which means “Protest against High Court of Singapore for miscarriage of justice” in English language, and you have thereby committed an offence punishable under Section 16(2)(a) of the Public Order Act, Chapter 257A read with Section 5(1) of the same Act.”

FIRST CHARGE

There are three elements which the prosecution must prove beyond a reasonable doubt for the first charge: the accused took part in an assembly on 2 March 2016 at about 10.02am at Istana Park; the assembly took place within a prohibited area described in the Schedule to the Public Order (Prohibited Areas) Order 2009; the accused ought reasonably to know that such assembly was prohibited by an order made under section 12(1) POA.

Did the accused take part in an assembly in a prohibited area?

I shall consider the first and second elements together. The definition of “assembly” is found in section 2 of the POA. The averment in the charge is based on the purpose referred to in paragraph (a):

“assembly” means a gathering or meeting (whether or not comprising any lecture, talk, address, debate or discussion) of persons the purpose (or one of the purposes) of which is — (a) to demonstrate support for or opposition to the views or actions of any person, group of persons or any government; (b) to publicise a cause or campaign; or (c) to mark or commemorate any event, and includes a demonstration by a person alone for any such purpose referred to in paragraph (a), (b) or (c); [Emphasis added]

The material facts are not in dispute. On 24 February 2016, the accused applied to the Police Licensing Unit for a permit to conduct a protest on 3 March 2016 at 10am at “91 Cavenagh Rd, Istana (outside)”¹. At paragraph 3 of the email² he wrote:

The purpose of this protest is to make the allegation of judicial corruption in Singapore heard in public in an attempt to make the government deal with this issue in public, fairly and transparently.

It was not in dispute that on 2 March 2016 at about 10.01am, the accused was standing at the Istana Park, directly opposite the main gate of the Istana, holding two placards above his shoulders on which the words, “No Judicial Corruption in the Supreme Court of Singapore”³ and “抗议新加坡高等法院司法不公⁴, which means “Protest against High Court of Singapore for miscarriage of justice”, were printed (“the two placards”).

At 10.03am, Inspector Tang Wen Huie and Station Inspector Sharul bin Osman approached the accused and asked what he was doing. The accused replied that he was conducting a protest, and he had informed the local and international press, the AGC and the Supreme Court about it. The accused was informed that he was contravening the law by conducting a protest in a prohibited area. At 10.05am, he was placed under arrest.

The place where the accused was conducting his protest was marked with the symbol ‘X’ on a map of the prohibited area taken from the Schedule to the Public Order (Prohibited Areas) Order 2009⁵.

In his section 22 statement recorded by Station Inspector Spencer Serliat Thomas Tan on 2 March 2016 at 3.21pm⁶, in response to Q24, the accused said:

…The purpose of my protest is to act against the judicial Corruption in the Supreme courts of Singapore…The only way that I can act against the injustice imposed on me is to bring the attention of the general public to the issue of judicial corruption, by staging a public protest….

Based on the two placards stating ‘No Judicial Corruption in the Supreme Court of Singapore’ and the other with the Chinese words which mean ‘Protest against High Court of Singapore for miscarriage of justice’ which the accused was displaying by holding above his shoulders, the accused was clearly demonstrating opposition to the actions of the Singapore judiciary, a group of persons. This is confirmed by what he told the arresting officers about his presence there and what he said in his police statement. The actions of the accused fall within paragraph (a) of the definition of “assembly”. Given that a person alone can constitute an “assembly”, I find that the accused was taking part in an “assembly” as averred in the charge.

The boundary of the area delineated under ‘Istana’ where the holding of all public assemblies is prohibited is described in Part 1 of the Schedule to the Public Order (Prohibited Areas) Order 2009 made by the Minister under section 12(1) of the POA. Given that the place where the accused conducted the protest, which was marked ‘X’ on P3, is within the prohibited area, I find that the holding of the assembly was prohibited.

Did the accused ought reasonably to know the assembly was prohibited?

The charge specifies the mental element as “ought reasonably to know”. I agree with the learned DPP’s submission on the test to be applied, which I reproduce⁷:

We submit, therefore, that the Teo Ai Nee definition of when an accused ought reasonably to know something—excluding (post-Tan Kiam Peng) the component of “willfully shutting one’s eyes to the obvious”—can and should be applied in any enquiry into whether the accused possessed constructive knowledge. In other words, the phrase “where …he ought reasonably to know” would encompass “wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make”, as well as “knowledge of the circumstances which would indicate the facts to an honest and reasonable man”.

On 29 February 2016, Station Inspector Thia Kai Wun (‘SI Thia’) replied to the accused’s email P2 and informed him that his application for a permit has been declined. SI Thia went on to expressly state that the Istana is a prohibited area. He also explicitly referred to the Public Order (Prohibited Areas) Order 2009 in his reply at [3] which reads⁸:

We would like to inform you that the Istana is a prohibited area under the Public Order (Prohibited Areas) Order 2009. Organising or taking part in an assembly or procession at the prohibited area is an offence under section 15 of the Public Order Act, Chapter 257A.

The accused was thus put on notice that his protest was in a prohibited area. I agree with the prosecution that ‘[t]he onus therefore was on the accused to ascertain whether his protest fell within the prohibited area’.

On the same day that the accused learnt of the rejection, the accused in an email to the Attorney-General (“AG”), copying various parties, set out several reasons why he would not accept the rejection. He also reproduced section 12 of the POA and the link to the Singapore Statutes Online website⁹. The accused had access to the website and could have easily checked the reference provided by SI Thia and would have learned that the Istana Park is a prohibited area.

In the totality of the above evidence, the ‘knowledge of the circumstances which would indicate the facts to an honest and reasonable man’ gives rise to the irresistible inference that the accused ought reasonably to know that the holding of the assembly was prohibited by the order. The decision of the accused to remain silent when his defence was called means that he has not adduced any evidence to rebut the inference. Moreover, whether the accused ought reasonably to know the protest was prohibited by an order is a matter within his particular knowledge and which he alone is able to shed some light on. His failure to present his version of the facts in the witness box and be subject to cross-examination fortifies the inference that he ought reasonably to know the assembly was prohibited.

In the upshot, I agree with the following submissions of the prosecution¹⁰:

Viewed in the context of the cautionary emails sent to him by the police, the accused wilfully and recklessly failed to make such inquiries as an honest and reasonable man would have made as to whether the assembly at Istana Park was prohibited.

…

Having been put on notice by SI Thia’s e-mails, the accused ought reasonably to have known that his protest was prohibited. The fact that the accused did not make reasonable inquiries, and instead simply insisted that he was entitled to conduct the protest, is no defence.

I am therefore of the view that the accused ought reasonably to know that his protest was prohibited.

The accused’s submissions

In essence, the accused raised the validity of the Public Order (Prohibited Areas) Order 2009 as a defence. He submitted that the ministerial order is void because the precise public interest has not been articulated and that it violates the Constitution of the Republic of Singapore as...