Wham Kwok Han Jolovan v Attorney-General

• Jurisdiction: Singapore
• Judgment Date: 22 December 2015
• Date: 22 December 2015
• Docket Number: Originating Summons No 594 of 2015
• Court: High Court (Singapore)

Wham Kwok Han Jolovan

Plaintiff

and

Attorney-General

Defendant

[2015] SGHC 324

Woo Bih Li J

Originating Summons No 594 of 2015

High Court

Administrative Law — Remedies — Quashing order — Whether police warning for offence in lieu of prosecution could be quashed

Facts

The applicant, Wham Kwok Han Jolovan, was issued a warning by the Central Police Division (“CPD”) on 25 March 2015 (“the 25 March Warning”) in lieu of prosecution for an offence under the Public Order (Unrestricted Area) Order 2013. When he was requested to sign a notice of warning to acknowledge

receiving the warning, he refused. The applicant subsequently wrote to both the police and the Attorney-General’s Chambers to protest the issuance of the warning against him. He did not receive a reply. He then commenced the present application on 22 June 2015 for leave to commence judicial review proceedings to quash the warning administered to him by the CPD. He argued that a warning affected him by increasing the likelihood of prosecution if he was to commit a fresh offence in the future and that the courts had taken into account a warning in the course of sentencing.

Held, dismissing the application:

(1) A warning was not binding on its recipient such that it affected his legal rights, interests or liabilities. The warning was no more than an expression of the opinion of the relevant authority that the recipient had committed an offence. It did not and could not amount to a legally binding pronouncement of guilt or finding of fact. The recipient was entitled to challenge the warning: at [33] and [34].

(2) With respect to the applicant’s arguments, an individual had no right to insist that he be issued a warning before prosecution was initiated. The Attorney-General (“AG”) was also not bound to consider whether a prior warning had been given or not before deciding whether to prosecute. Further, a court was not entitled to treat a warning as an antecedent or as an aggravating factor since it had no legal effect and was not binding on the recipient: at [36], [37] and [44].

(3) There was thus no decision in the 25 March Warning for the court to quash: at [45]

[Observation: The applicant’s consent was not necessary for the AG to issue him a warning: at [47].]

Case(s) referred to

Comptroller of Income Tax v ACC [2010] 2 SLR 1189 (folld) Hot Holdings Pty Ltd v Creasy (1996) 134 ALR 469 (refd) Jeyaretnam Kenneth Andrew v AG [2014] 1 SLR 345 (refd)

PP v Siew Boon Loong [2005] 1 SLR(R) 611; [2005] 1 SLR 611 (refd)

PP v Tan Hiang Seng [2012] SGDC 484 (refd)

PP v Yap Rogers [2009] SGDC 146 (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (refd)

Legislation referred to

Income Tax Act (Cap 134, 2008 Rev Ed) s 45

Public Order (Unrestricted Area) Order 2013 (S 30/2013) paras 4(1)(b), 4(2) Mining Act 1978 (WA)

Choo Zheng Xi and Jason Lee Hong Jet (Peter Low LLC) for the applicant; Francis Ng Yong Kiat, Zhuo Wen Zhao and Elton Tan (Attorney-General’s Chambers) for the respondent.

22 December 2015

Judgment reserved.

Woo Bih Li J:

Introduction

1 Originating Summons No 594 of 2015 (“OS 594”) is an application by Mr Wham Kwok Han Jolovan (“Mr Wham”), for leave to commence judicial review proceedings to quash two warnings administered to him by the Central Police Division (“CPD”) on or about 25 March 2015 and 5 May 2015 respectively. Although OS 594 seeks to quash two different warnings on two different days, the parties agreed that there was no warning administered by the CPD on 5 May 2015. Indeed, as I will elaborate below, it was not even clear whether a warning was administered on the earlier date of 25 March 2015.

Background

2 On 1 October 2014, Mr Wham organised a candle light vigil entitled “Democracy Now! Singapore in Solidarity with Hong Kong” at Hong Lim Park. The event was publicised on Facebook where it was expressly stated that foreigners and permanent residents required a permit in order to participate in the event. At the start of the event, Mr Wham also informed the participants that only Singapore citizens were allowed to participate.

3 After the event, the CPD commenced investigations against Mr Wham as officers from the CPD had observed that there were participants that appeared to be foreigners. Upon the completion of its investigations, the CPD submitted its findings to the Attorney-General (“AG”) for him to make a decision in relation to Mr Wham. The AG directed the CPD to issue a warning to Mr Wham to refrain from conduct amounting to an offence under para 4(1)(b) read with para 4(2) of the Public Order (Unrestricted Area) Order 2013 (S 30/2013) (“the Order”) or any other criminal conduct in the future, instead of charging Mr Wham. Paragraph 4(1)(b) of the Order provides that an organiser of any demonstration held in Hong Lim Park must not allow any person who is neither a Singapore citizen nor a permanent resident to take part in the demonstration, while para 4(2) provides that contravention of para 4(1)(b) will result in an offence.

4 On 25 March 2015, Mr Wham met Deputy Superintendent of Police S Pannirselvam (“DSP Pannirselvam”) at the CPD Headquarters. According to DSP Pannirselvam’s first affidavit of 31 August 2015, DSP Pannirselvam had explained to Mr Wham that investigations against him had been completed and after careful consideration of the circumstances of the case and in consultation with the AG, a warning would be administered to Mr Wham in lieu of prosecution for an offence under para 4(1)(b) read with para 4(2) of the Order. DSP Pannirselvam proceeded to verbally warn Mr Wham as directed by the AG and informed Mr Wham that the same leniency may not be shown to him if he were to commit any offence in the future.

5 DSP Pannirselvam then invited Mr Wham to sign a document entitled “Notice of Warning”. The Notice of Warning set out Mr Wham’s name, the offence he was being warned for and the date and place of that offence. I will set out the material terms of the Notice of Warning later. Mr Wham refused to sign the Notice of Warning because he believed that he had done nothing wrong to warrant a warning and therefore he did not consent to the warning being issued to him. He informed DSP Pannirselvam that he wanted to consult his lawyers and requested a copy of the Notice of Warning. DSP Pannirselvam refused to give Mr Wham a copy as Mr Wham did not want to sign the Notice of Warning to acknowledge that he had received the document. DSP Pannirselvam said he then made some notes on the unsigned Notice of Warning. In the meantime, Mr Wham left CPD Headquarters.

6 On 4 May 2015, Mr Wham called the Investigation Branch Call Centre of the CPD to enquire about the outcome of the investigations against him. Mr Wham was informed that a warning had been administered to him on 25 March 2015. Mr Wham then requested...