Public Prosecutor v Yue Mun Yew Gary

• Jurisdiction: Singapore
• Judge: Quentin Loh J
• Judgment Date: 14 September 2012
• Neutral Citation: [2012] SGHC 188
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 58 of 2012
• Published date: 18 September 2012
• Year: 2012
• Hearing Date: 29 June 2012
• Plaintiff Counsel: DPP Ng Yiwen and DPP Sarah Ong (Attorney-General's Chambers)
• Defendant Counsel: N Sreenivasan and S Balamurugan (Straits Law Practice LLC)
• Subject Matter: Criminal law,offences,public tranquility
• Citation: [2012] SGHC 188

Quentin Loh J:

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

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 6 weeks’ imprisonment in default of payment) in DAC 22568/2011 and $2,500 (or 2 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 twelve months’ imprisonment.

The background facts

The relevant facts are not in dispute. On National Day, 9 August 2010, at 2.57pm, the Respondent posted a comment on the “Wall” of Temasek Review’s Facebook page. This post contained a link to a YouTube 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!!!!!!”¹

Following the Respondent’s post, a series of comments were exchanged between the Respondent and one “Ng Jimmy”:²

‘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 ...

On 1 September 2010, an informant lodged a Police Report which stated that:

On 9 August 2010 at about 10.50pm, 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 news relating to postings on the internet. As such, I am lodging this Police report.

That’s all.

The Respondent was arrested on 9 September 2010, and charged on 18 January 2012. As noted above, following a 2 day hearing he was convicted and sentenced on 12 March 2012.

The decision below

The learned District Judge identified two key issues in determining the Respondent’s sentence:³ Whether the Respondent had intended the post to contain an incitement to violence; and Whether the Respondent had intended to incite violence.

Although the learned District Judge found that the Respondent had intended his post to contain an incitement to violence, he accepted the Respondent’s explanation that the post was made “out of angst” and also the defence psychiatrist’s appraisal of the Respondent as “attention-seeking” to “enhance his self-esteem”.⁴ As such, the learned District Judge concluded that the Respondent did not intend to incite violence.⁵

Section 267C of the Penal Code

As this is the first prosecution brought under s 267C of the Penal Code, an examination of the genealogy of the section would be apposite. The core of s 267C became part of our law in 1955, when s 151A was added to the Penal Code. Section 151A read:

Posting placards, etc. 151A. Whoever makes, prints, possesses, posts, distributes or has under his control any document 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 3 years, or with a fine, or with both.

While moving the Bill which introduced s 151A (see Singapore Parliamentary Debates, Official Report (22 September 1955) vol 1 at cols 769-771), the Attorney-General C H Butterfield stated that the making and circulation of documents of this kind clearly constituted a threat to law and order. Although he noted that such activities found much favour with the Malayan Communist Party, he did not accept that s 151A was needed only temporarily.⁶ He also added that the proposed provision covered activities which were not dealt with adequately by the Sedition Ordinance (Ordinance No 18 of 1938) (“Sedition Ordinance”) or the Undesirable Publications Ordinance (Ordinance No 19 of 1938) (“Undesirable Publications Ordinance”).These two Ordinances were passed in 1938 to replace s 124A of the Penal Code (Ordinance No 4 of 1871), which created the offence of Sedition, and the Seditious Publications Ordinance (Ordinance No 11 of 1915) (“Seditious Publications Ordinance”). In moving the Sedition Bill before the Legislative Council of the Straits Settlements (see Shorthand Report of the Proceedings of the Legislative Council of the Straits Settlements, Monday 13 June 1938), Attorney-General C G Howell provided the following reason:

The present law of the Colony with regard to sedition is briefly dealt with in section 124A of the Penal Code, but it is desirable that this subject should be dealt with in rather more detail than it is possible to do in that way, and the present Bill reproduces substantially the provisions of the common law of England with regard to sedition. ...

[emphasis added]

The Undesirable Publications Bill was read immediately after, and the Attorney-General introduced it as such:

This Bill is, to some extent, complementary to the Bill which has just been read a first time, and gives wider powers for prohibiting the importation of undesirable publications. Our present powers are derived from the Seditious Publications Ordinance which will be repealed as its powers are limited to the prohibition of seditious publications, but it is quite clear that other kinds of undesirable publications as well as seditious publications may be sought to be imported, and the relevant clause of this Bill gives the necessary powers to the Governor-in-Council where it appears necessary in the public interest.

[emphasis added]

It is noteworthy that the Seditious Publications Ordinance did contain a proscription against incitements to violence. The following extract is taken from the Ordinance as it stood in 1955 (Ordinance 63 of 1935): 3.-(1) Any person who prints, publishes, imports either by land, sea or air, sells, offers for sale, distributes, or has in his possession any newspaper, book or document, or any extract from any newspaper or book, or who writes, prepares or produces any book or document containing any words, signs, or visible representations which are likely or may have a tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor, implication or otherwise, (a) to incite to murder or to any act of violence;

...

(e) to encourage or incite any person to interfere with the administration of the law or with the maintenance of law and order; or

shall be guilty of an offence against this Ordinance, and such newspaper, book or document or such extract shall be forfeited and may be destroyed or otherwise disposed of as the Governor directs.

In 2007, there was a comprehensive review of the Penal Code and many amendments were made to it. During the second reading of the amendment Bill, Senior Minister of State for Home Affairs, Associate Professor Ho Peng Kee, stated the following (Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 at cols 2242-2242):⁷

Many of our messages are transmitted through the electronic medium, such as through emails, SMS messages and, for some, blogging. It is therefore the right thing to do to enhance the coverage of relevant Penal Code provisions to cover the various electronic means and media which can be used to perpetrate crime.

Accordingly, s 151A was repealed and s 267C, which covers not only documents but also electronic records, was introduced. It was under this updated provision that the Respondent was charged and convicted for making his Facebook posting.

The mens rea element

The learned District Judge below made the substantive legal finding that, based on the “clear language” of the statute, s 267C created a strict liability offence. However, s 267C is conspicuously silent on the issue of the offender’s intention, and it is settled law that the mere omission of a mens rea requirement does not automatically entail strict liability. Indeed, the consistent position of our courts has been precisely to the...