Yap Keng Ho and others v Public Prosecutor

• Judge: Woo Bih Li J
• Judgment Date: 22 February 2011
• Neutral Citation: [2011] SGHC 39
• Citation: [2011] SGHC 39
• Docket Number: Magistrate’s Appeals Nos 101–108 and 110–111 of 2010
• Published date: 24 February 2011
• Hearing Date: 07 October 2010,04 October 2010
• Plaintiff Counsel: The appellants in person
• Date: 22 February 2011
• Defendant Counsel: Isaac Tan, John Lu Zhuoren and Thiagesh Sukumaran (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Criminal Law,Constitutional Law

Woo Bih Li J: Introduction

The appellants, namely Yap Keng Ho (“Yap”), Chee Soon Juan (“Dr Chee”), Chee Siok Chin (“CSC”), John Tan Liang Joo (“Tan”), Ghandi s/o Karuppiah Ambalam (“Ghandi”), Seelan s/o Palay (“Seelan”), Chong Kai Xiong (“Chong”), Muhammad Shafi’ie Syahmi Bin Sariman (“Shafi’ie”), Go Hui Leng (“Go”) and Mohamed Jufrie Bin Mahmood (“Jufrie”) had been convicted by a District Judge of two charges under s 5(4)(b) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“MOA”). The first charge against each appellant (“the Assembly Charge”) read as follows:

You, [name of appellant] are charged that you on the 15th day of March 2008, at about 2.31 pm on the drive way leading to the main entrance of the Parliament House, North Bridge Road, together with [the other nine Appellants and nine other accused persons], did participate in an assembly without a permit in a public place within the area described in the Schedule to the Miscellaneous Offences (Public Order and Nuisance)(Prohibition of Assemblies and Processions – Parliament and Supreme Court) Order [“MO(PAPPSC)O”], where you ought reasonably to have known that the assembly was held without the prior permission of the Deputy Commissioner of Police in writing in contravention of paragraph 2 of the [MO(PAPPSC)O] and you have thereby committed an offence punishable under Section 5(4)(b) of the [MOA].

The second charge against each appellant (“the Procession Charge”) read as follows:

You, [name of appellant] are charged that you on the 15th day of March 2008, at about 2.31 pm on the drive way leading to the main entrance of the Parliament House, North Bridge Road, together with [the nine other appellants and eight other accused persons], did participate in a procession without a permit in a public place within the area described in the Schedule to the [MO(PAPPSC)O], where you ought reasonably to have known that the procession was held without the prior permission of the Deputy Commissioner of Police in writing in contravention of paragraph 2 of the [MO(PAPPSC)O] and you have thereby committed an offence punishable under Section 5(4)(b) of the [MOA].

Yap, Dr Chee, CSC and Ghandi had similar antecedents and were each fined $1,000 (in default one week’s imprisonment) on each charge amounting to a total fine of $2,000 (in default two weeks’ imprisonment) being imposed on each of them. Tan, Seelan, Chong, Shafi’ie, Go and Jufrie were each fined $900 (in default six days’ imprisonment) on each charge amounting to a total fine of $1,800 (in default 12 days’ imprisonment) being imposed on each of them.

With the exception of Dr Chee and CSC, both of whom withdrew their appeals against conviction and sentence for the Assembly Charge only, as well as Tan, who withdrew his appeal against conviction and sentence for the Procession Charge only, all the other appellants appealed against their conviction and sentence for both charges.

The law

Section 5 of the MOA provided as follows:

Assemblies and processions 5. —

...

(2) The Minister may by order prohibit or restrict, subject to such conditions as may be specified in the order, the holding of any assembly or procession in any public road, public place or place of public resort specified in the order.

...

(4) Any person who —

...

(b) participates in any assembly or procession in any public road, public place or place of public resort where he knows or ought reasonably to have known that the assembly or procession is held in contravention of an order under subsection (2) ... shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000.

Paragraph 2 of the MO(PAPPSC)O stated:

Prohibition on holding assembly and procession 2. No person shall hold any assembly or procession (other than a funeral procession in respect of which a permit has been granted under the Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (R 1)) consisting of 2 or more persons —

(a) in any public road, public place or place of public resort within the area described in the Schedule; or

(b) in or near any public road forming the boundary of that area,

unless he has obtained the prior permission of the Deputy Commissioner of Police in writing.

The Schedule to the version of the MO(PAPPSC)O in force on 15 March 2008 described the prohibited area referred to in paragraph 2 of the MO(PAPPSC)O as such:

DESCRIPTION OF AREA Commencing from a point at the junction of North Bridge Road with Coleman Street, thence along Coleman Street to its junction with St. Andrew's Road, thence along St. Andrew's Road to its junction with Stamford Road, thence along Stamford Road to its junction with Connaught Drive, thence along Connaught Drive to its junction with Parliament Lane, thence along Parliament Lane to the left bank of the Singapore River, proceeding along the left bank to the junction of North Bridge Road, thence along North Bridge Road to the point of commencement at the junction of North Bridge Road with Coleman Street. [emphasis added]

From 14 November 2008, the Schedule was amended to read as follows:

DESCRIPTION OF AREA Commencing from a point at the junction of North Bridge Road with Coleman Street, thence along Coleman Street to its junction with St. Andrew’s Road, thence along St. Andrew’s Road to its junction with Stamford Road, thence along Stamford Road to its junction with Connaught Drive, thence along Connaught Drive to its junction with Old Parliament Lane, thence along Old Parliament Lane to the east bank of the Singapore River, proceeding along the east bank to the junction of North Bridge Road, thence along North Bridge Road to the point of commencement at the junction of North Bridge Road with Coleman Street. [emphasis added]

The facts

On 28 December 2007, Dr Chee made an application on behalf of the Singapore Democratic Party (“SDP”) for a police permit to hold an assembly, described as a “protest rally”, on 15 March 2008 from 2.00pm to 6.00pm at the Parliament House. In a letter dated 25 January 2008, the police informed Dr Chee that the application was unsuccessful. Nevertheless, the SDP announced on its official website that it was going ahead with the planned rally. The rally coincided with World Consumer Rights Day, the theme of the rally was “Tak boleh tahan!”, and the attire for the event was “red top”. The public was invited to join the rally to “demonstrate your anger in a peaceful manner” against “the exploitative price hikes of the PAP Government”: see PP v Chee Soon Juan and others [2010] SGDC 259 (“the District Judge’s decision”). Apparently, no application was made for a permit to hold a procession.

At about 2.00pm on 15 March 2008, a group of 10–20 people gathered at the driveway in front of Parliament House. The ensuing events were recorded on videotape¹ by Senior Station Inspector Amiruddin Bin Mohamed (PW4). The videotape was screened at the trial and the facts which it revealed, as well as the testimony of Dr Chee at trial, are summarised in the District Judge’s decision at [43] and [46]–[48] as follows: 43 ... (a) at the start of the protest rally, Ghandi, [Chia Ti Lik (“Chia”)], CSC and [Dr Chee] took turns to address members of the public and the media on the purpose of the assembly; (b) the group displayed common household items, posed for photographs and chanted slogans; (c) when ... placards were delivered in a car by Yong, some of the accused persons went forward immediately to collect the placards; (d) five of the accused persons then stood in a row to pose for photographs with the placards.

...

46 ... it was not disputed that the protest rally included a procession from Parliament House to Orchard Road and back. This was mentioned explicitly by [Dr Chee] at the start of the protest rally² ... The undisputed evidence shows that [Dr Chee] had told those present at the start of the protest rally that the group was waiting for the placards to arrive before embarking on the procession. ... 47 In his evidence in court, [Dr Chee] admitted that the procession was intended to spread the message about the “exploitative price hikes” to bystanders and other members of the public along the route. Along the way, the group would be distributing flyers similar to the flyers seized by the police.³ 48 Although the accused persons were leaving the driveway of Parliament House when [DSP William Goh Huat Beng (“DSP Goh”)] approached them [at about 2.31pm to inform them that they were committing the offence of assembly in a gazetted place without a permit and would be arrested if they did not disperse immediately], the objective facts ... show that they did not intend to abandon their planned procession. There were elements in their actions which clearly suggest that they were engaging in a procession in continuation of the protest rally when they set off from the driveway of Parliament House. These include the following: (a) The accused persons continued to move as a collective entity, moving substantially as a body of persons in succession by a common route, with those leading the group slowing down at times for those at the back to catch up; (b) [Tan], Seelan, [Jeffrey George], Chong and [Muhammad Jufri Bin Mohd Salim] continued to hold up the placards as they were walking away from the driveway of Parliament House;⁴ (c) [Lang Chin Kah Carl Coca] tried to hand a flyer to the driver of a silver taxi at the junction of High Street and North Bridge Road;⁵ (d) Yap warned the group that there were “PAP mata in white T-shirts” in the vicinity;⁶ (e) [Dr Chee] and [Tan], who were leading the group, had their arms linked together as they continued to walk forward (after the third warning by DSP Goh) with John still holding up the placard;⁷ (f) When DSP Goh ordered...