You Xin v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judgment Date: 24 July 2007
• Date: 24 July 2007
• Docket Number: Magistrate's Appeals Nos 28 and 29 of 2007

[2007] SGHC 120

High Court

V K Rajah JA

Magistrate's Appeals Nos 28 and 29 of 2007

You Xin

Plaintiff

and

Public Prosecutor and another appeal

Defendant

The appellants in person

Hay Hung Chun (Attorney-General's Chambers) for the respondent.

AG v Chee Soon Juan [2006] 2 SLR (R) 650; [2006] 2 SLR 650 (refd)

Ang Poh Chuan v PP [1995] 3 SLR (R) 929; [1996] 1 SLR 326 (folld)

Attorney-General v Newspaper Publishing Plc [1988] Ch 333 (refd)

Attorney-General v Times Newspapers Ltd [1974] AC 273 (refd)

Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887 (refd)

Balogh v St Albans Crown Court [1975] QB 73 (refd)

Bedico Ma Teresa Bebango v PP [2002] 1 SLR (R) 122; [2002] 1 SLR 192 (folld)

BK v The Queen (1996) 129 DLR (4th) 500 (refd)

Bok Chek Thou v Low Swee Boon [1998] 4 MLJ 342 (folld)

Chang Hang Kiu v Sir Francis T Piggott [1909] AC 312 (refd)

Coward v Stapleton (1953) 90 CLR 573 (refd)

Emperor v Shankar Krishnaji Gavankar (1942) 44 Bom LR 439 (not folld)

Hennegal v Evance (1806) 12 Ves Jun 201; 33 ER 77 (refd)

Izuora v The Queen [1953] AC 327 (refd)

Jaginder Singh v Attorney-General [1983] 1 MLJ 71 (folld)

Jagir Singh v Gram Panchayat Raipur Kalan (1983) ILR 1 P&H 396 (folld)

Jeames v Morgan (1616) Cary 56; 21 ER 30 (refd)

Knight Glenn Jeyasingam v PP [1998] 3 SLR (R) 196; [1999] 3 SLR 362 (folld)

Koperasi Serbaguna Taiping Barat Bhd v Lim Joo Thong [1999] 6 MLJ 38 (refd)

Kumaraendran, an Advocate & Solicitor, Re [1975] 2 MLJ 45 (refd)

Macara v Macfarlane1980 SLT (Notes) 26 (folld)

McKeown vThe King (1971) 16 DLR (3d) 390 (refd)

Morris v Crown Office [1970] 2 QB 114 (refd)

Parashuram Detaram Shamdasani v King-Emperor [1945] AC 264 (refd)

Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] 2 SLR (R) 518; [2007] 2 SLR 518 (refd)

Pollard, In re (1868) LR 2 PC 106 (folld)

Public Prosecutor v Lee Ah Keh [1968] 1 MLJ 22 (folld)

R v Almon (1765) Wilm 243; 97 ER 94 (refd)

R v Davies [1906] 1 KB 32 (refd)

R v Davison (1821) 4 B & Ald 329; 106 ER 958 (refd)

R v Joseph Griffin (1988) 88 Cr App R 63 (refd)

R v Lefroy (1873) LR 8 QB 134 (folld)

R v Logan [1974] Crim LR 609 (refd)

R v Kevin John Moran (1985) 81 Cr App R 51 (refd)

R v William Stone (1796) 6 Term Rep 527; 101 ER 684 (refd)

R v Thomson Newspapers Ltd, Ex parte Attorney-General [1968] 1 WLR 1 (folld)

Ram Goswami v PP [1983-1984] SLR (R) 694; [1984-1985] SLR 478 (folld)

Tan Khee Eng John, Re [1997] 1 SLR (R) 870; [1997] 3 SLR 382 (refd)

Weston v Central Criminal Court Courts Administrator [1977] QB 32 (refd)

Wilkinson v S [2003] 1 WLR 1254 (folld)

Zainur bin Zakaria v Public Prosecutor [2001] 3 MLJ 604 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)ss 266 (1),268 (1),320, 321,322, 323

Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed)s 5 (1) (consd)

Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184,R 1, 2000 Rev Ed)r 5 (consd)

Penal Code (Cap 224,1985 Rev Ed)ss 175, 178,179, 180,228

Rules of Court (Cap 322, R 5, 2006 Rev Ed)O 32r 9 (1), O 32r 9 (2)

Subordinate Courts Act (Cap 321, 1999 Rev Ed)ss 3 (1), 8,8 (1),8 (2),8 (4),34

Code of Criminal Procedure (Act V of 1898) (India) s 480

Code of Criminal Procedure1973 (Act 2 of 1974) (India)s 345 (1)

Courts and Jurisdiction–Contempt of court–Criminal contempt–Accused persons chanting with backs to court–Summary conviction by District Court for contempt–Whether accused persons' conduct amounting to contempt “in the face of the court”–Jurisdiction of Subordinate Courts to summarily punish for such contempt–Whether procedural safeguards in relation to summary process adequately adhered to–Criminal Law–Statutory offences–Miscellaneous Offences (Public Order and Nuisance) Act–Accused persons convicted of participating in assembly without permit –Whether accused persons' convictions should be overturned–Section 5 (1) Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed)–Rule 5 Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184, R 1, 2000 Rev Ed)

The appellants were tried together with four other co-accused (collectively, “the accused”) and convicted by the District Court for knowingly participating in an assembly without a permit contrary to r 5 of the Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184, R 1, 2000 Rev Ed) (“the Rules”) read with s 5 (1) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“the Act”). During the said trial, the accused disrupted the proceedings by chanting with their backs to the court despite being asked by the district judge to stop. The district judge found the accused in contempt and had them taken into custody. He later gave them an opportunity to apologise but they refused. He then formally charged the accused with contempt and asked each of them to show cause why they should not be so convicted. He rejected the reasons given, convicted them of contempt and sentenced them to two days' imprisonment each after having heard them in mitigation.

The appellants appealed against their convictions for participating in the assembly. They did not formally indicate their desire to appeal against the convictions for contempt but the appellate court decided to exercise its discretion and examine the record of the proceedings in the District Court in order to satisfy itself of the correctness, legality and propriety of these convictions.

Held, dismissing the appeal and declining to exercise revisionary powers in relation to the convictions for contempt:

(1) The evidence against the accused, namely a video recording of the incident, clearly showed that the accused participated in an assembly to publicise “a cause or campaign”. The appropriate timelines in the video recording could be established by reference to the testimony of the prosecution witnesses and the notes of evidence. The authenticity of the video recording was also not doubted. As there was no permit for the assembly, the accused's appeals against their convictions were dismissed: at [5].

(2) The Subordinate Courts' jurisdiction to punish acts of contempt was found in s 8 of the Subordinate Courts Act (Cap 321, 1999 Rev Ed) (“SCA”) and s 320 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”). The summary process to deal with contempt in the face of the court was available in all instances whether or not s 8 of the SCA or s 320 of the CPC was invoked because the power to summarily punish such contempt flowed from the inherent jurisdiction of the courts: at [22], [28]and [31].

(3) The summary process for dealing with contempt in the face of the court was extreme and should not be resorted to unless absolutely necessary. Nonetheless, the exercise of this discretionary jurisdiction would not be lightly interfered with by an appellate court, provided that the judge's conduct did not disqualify him for bias and that he accorded the person concerned the essential procedural safeguards: at [41] and [44].

(4) Safeguards must be followed. The first safeguard was the need for a proper record, as complete as possible, of the conduct constituting the alleged contempt but where there was such disruption to the court proceedings that maintaining complete records was difficult, a less than complete account might still be acceptable: at [46] and [48].

(5) Before charging the alleged contemnor, the court should inform him of its desire to pursue contempt proceedings, that it had not yet taken cognisance of the alleged contempt, but that when it did in fact take cognisance, the contempt proceedings would have begun and the alleged contemnor would then be given a chance to be heard in response to a charge yet to be formulated against him. The court might order the alleged contemnor to be detained or adjourn the proceedings for a “cooling-off” period: at [51] to [53].

(6) The alleged contemnor might be given the opportunity to apologise to the court. It was within the right of the court to decline to exercise its discretion to take cognisance of the contempt when an apology was given: at [54].

(7) If the court decided to take cognisance of the contempt, it should then inform the alleged contemnor that contempt proceedings had been formally commenced against him: The court must adhere to the rules of natural justice. The alleged contemnor must be informed with sufficient precision of the charge against him and be given the opportunity to explain his conduct and advance any available defence, but this did not extend to a right of legal representation as this was a summary proceeding: at [56], [60], [63] and [67].

(8) There was no necessity for the court to sentence the contemnor on the same day it took cognisance of the offence. Where the sentencing was on a later day, the court should, in lieu of overnight detention, consider the question of bail, except in egregious cases: at [74] and [76].

(9) At the point of sentencing, the alleged contemnor should be given an opportunity to be heard in mitigation despite the absence of statutory provisions to this effect: at [77].

(10) The court's power to imprison should only be imposed in the most serious cases, commonly upon those who interrupted the court proceedings. The seriousness of the contempt could be judged by reference to the likely interference with the due administration of justice and the culpability of the offender, the latter being the key factor: at [78].

(11) The conduct of the accused was calculated to be offensive and to disrupt the court proceedings. It was clearly contempt in the face of the court: at [80].

(12) In the present case, the procedural safeguards had been adhered to in substance and their purposes met. It could not be said that there was “serious injustice” to justify the exercise of the court's...