Public Prosecutor v Yan Jun [2017] SGMC 50

A PDF version of this judgement is here. 

Public Prosecutor

v

Yan Jun

[2017] SGMC 50

MAC-905633-20 17 & 4 Others

Magistrate's Appeal No MA-9258/20l7/01

10 August 2017 - 11 August 2017 & 14 August 2017

22^nd August 2017

District Judge Ng Peng Hong:

1. This was a joint trial of 5 charges conducted pursuant to s133 Criminal Procedure Code as the charges formed or were a part of a series of offences of the same or a similar character. At the conclusion of the trial, the Accused was convicted and sentenced to 3 weeks' imprisonment and a total fine of $20,000 and in default of payment, to serve an imprisonment term of 12 weeks. The Accused is appealing against the conviction and sentence.

2. The Accused claimed trial to all the 5 charges - 4 for taking part in a public assembly without a permit, an offence punishable under s 16(2)(a) of the Public Order Act (Cap. 257A, 2012 Rev. Ed.) ("POA"), read with s5(1) of the same Act and for a repeat offender the punishment is prescribed by sI6(3)(b) of the same Act. The 5th charge is for behaving in a disorderly manner in a public place contrary to s 20 of the Miscellaneous Offences (Public Order & Nuisance) Act (Cap. 184, 1997 Rev. Ed.) ("MOA").

3. As the 4 charges for taking part in a public assembly without a permit were similar, I will only set out the text of one of the charges, namely MAC 905633/2017, which reads:

"You ... are charged that you, on 3 July 2017, at about 12.01 pm, outside Raffles Place MRT, located at 5 Raffles Place, Singapore, did take part in a public assembly without permit, to wit, by demonstrating opposition to the actions of the Prime Minister of Singapore and the Singapore judiciary, by displaying a placard stating "PM LEE: RESIGN OVER TERREX CONSPIRACY!" on one side and "NO JUDICIAL CORRUPTION IN SUPREME COURT" on the other side, 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 and further, that you, before the commission of the said offence, were on 16 June 2016, in State Courts 7, vide MAC-903278-2016, convicted of an offence punishable under s 16(2)(a) of Public Order Act, Chapter 257 A, read with s 5(1) of the same Act, and sentenced to a fine of $2,000 (in default 1 week imprisonment), which conviction and punishment have not been set aside to date, and you are thereby liable for enhanced punishment under Section 16(3)(b) of the Public Order Act, Chapter 257A."

4. The charge for behaving in a disorderly manner in a public place contrary to s 20 MOA reads:

"You ... are charged that you, on 4 July 2017, at about 1. 15pm, outside Raffles Place MRT, located at 5 Raffles Place, Singapore, a public place, did behave in a disorderly manner, to wit, by repeatedly shouting through a loudhailer at the police officers at the scene and you have thereby committed an offence punishable under Section 20 of the Miscellaneous Offences (Public Order & Nuisance) Act, Chapter 184." See MAC906355/2017.

5. The Prosecution called a total of 11 witnesses. On the other hand, the Accused did not give evidence. But at the end of the case, he tendered a written submission in response to the Prosecution's written submissions. See exhibit D1.

6. Having reviewed the evidence and the submissions, I found the accused guilty and convicted him of all the 5 charges. These are the reasons for my decision on conviction and sentence.

ELEMENT OF THE Sl6(2A) POA OFFENCE

7. Section 16(2)(a) of the POA reads: "16. (2) Each person who takes part in a public assembly or public procession -

(a) in respect of which no permit has been granted under section 7 or no such permit is in force, where such permit is required by this Act; […]

shall be guilty of an offence and shall, subject to subsection (3), be liable on conviction to a fine not exceeding $3,000."

8. Under s 5(1)(a) of the POA, no public assembly may be held in a public place unless a permit has been obtained from the Commissioner of Police:

"5.- (1) Subject to the provisions of this Act, a public assembly and a public procession shall not take place unless -(a) the Commissioner is notified under section 6 of the intention to hold the public assembly or public procession, and a permit is granted under section 7 in respect of that public assembly or public procession, as the case may be; "

9. For the 4 charges under s 16(2)(a) of the POA, the Prosecution must prove that the accused was taking part in a public assembly and no permit was granted in respect of that assembly.

10. The term "public assembly" is defined in s 2 POA as follows:

" "public assembly" means an assembly held or to be held in a public place or to which members of the public in general are invited, induced or permitted to attend."

11. The terms "assembly" and "public place" are further defined in s 2 POA as follows:

"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; […]

and includes a demonstration by a person alone for any such purpose referred to in paragraph (a), (b) or (c);”

“public place” means ---

(a)   any place (open to the air or otherwise) to which members of the public have access as of right or by virtue of express or implied permission, whether or not on payment of a fee, whether or not access to the place may be restricted at particular times or for particular purposes, and whether or not it is an "approved place" within the meaning of the Public Entertainments and Meetings Act (Cap. 257); [ ...]

12. In relation to the meaning of "taking part in an assembly", s 3(2) of the POA clarifies that:

"A reference to a person or persons taking part in an assembly or a procession shall include, as the case may be, a person carrying on a demonstration by himself, or a march by a person alone, for any such purpose referred to in the definitions of an assembly and a procession, respectively, in section 2(1). "

13. Section 17(1) provides a defence:

"17-(1) In any proceedings for an offence under section 16(1)(a) or (2)(a), it shall be a defence for the person charged to prove that he did not know, and neither suspected nor had reason to suspect, that no permit had been granted under section 7 in respect of the assembly or procession or that no such permit is in force, as the case may be. "

14. The Accused did not proffer any evidence to prove that he did not know, and neither suspected nor had reason to suspect, that no permit had been granted under s 7 POA in respect of the assembly he took part in, or that no such permit was in force.

15. On the other hand, the Prosecution has led evidence to prove every element of the charges beyond a reasonable doubt for each of the charges for which the accused had been charged. Their evidence took the form of oral testimonies in court as well as in in the form of Body-Worn-Camera ("BWC") footage and Police-Camera ("Polcam") footage which were screened in court.

3^RD CHARGE (MAC906055/2017): PROTEST OUTSIDE US EMBASSY ON 20 OCTOBER 2016

16. The Prosecution called 4 witnesses in relation to this charge: US Embassy Security Officer Teo Yew Kiat (PW7), Police Superintendent Ang Beng Chong (PW8), Sergeant Jacky Ong (PW9) and Inspector Kheong Yew Ming (PWI0).

17. Based on their testimonies and the Body-Worn-Camera ("BWC") footage and Police-Camera ("Polcam") footage, I made the following findings. I found that the Accused approached the US Embassy to submit a petition and to protest at the Embassy. Despite advice from PW7, the Accused persisted in protesting at the pavement in front of the Embassy. The Accused was holding two placards, bearing the words "PM LEE HSIEN LOONG RESIGN" and "NO JUDICIAL CORRUPTION IN THE SUPREME COURT IN SINGAPROE [sic]". See exhibits P21 and P22.

18. I agreed with the Prosecution that "[t]he clear inference from the content of the placards is that the accused was conducting a demonstration against the actions of Prime Minister Lee Hsien Loong, and the Singapore Judiciary. The was corroborated by the BWC footage (P23), which captures:(a) At 1625hrs, the accused claimed that "I am trying to get justice", (b) At 1627hrs, the accused claimed that "there is judicial corruption because the police arrested me wrongfully."

19. In a statement dated 20 Oct 2016 (exhibit P27) recorded by Investigation Officer Insp Spencer Tan (PW11), the Accused admitted to demonstrating opposition to the actions of the Singapore Judiciary and Prime Minister Lee during this incident. When asked to explain the meaning of his two placards, the Accused stated:

'No judicial corruption in the supreme court of Singapore, ' refers to the misjudgement of [2014] SGCA61 Tan Jun vs Attorney General' and subsequent court order to dismiss the entire case and the cost order against me ... This is a typical example of judicial corruption ... (at [A 13]) It means that PM Lee Hsien Loong should resign over the judicial corruption scandal. I have already reported the judicial corruption to the PM several times by email for investigations, but there was no response at all ... for that reason I request the PM Lee Hsien Loong to resign. (at [A 14])

20. I also found that the pavement outside the US Embassy was a place to which members of the public have access as of right.

4^TH CHARGE (MAC906056/2017): PROTEST OUTSIDE THE BRITISH HIGH COMMISSION ON 23 DECEMBER 2016

21. On 23 Dec 2016, the Accused staged another protest outside the British High Commission. The incident was captured on the BWC footage of Insp Kheong (PW 10). I found the Accused was holding two placards in protest: one reads, "PROTEST AGAINST THE JUDICIAL CORRUPTION IN THE SUPREME COURT OF SINGAPORE", and the other, "PM LEE HSIEN LOONG RESIGN".

22. I agreed with the Prosecution's submission that" [g]iven the proximity in time between this protest and the one outside the US Embassy, and the similar words used on the placards, the irresistible inference was that the accused was demonstrating opposition to the actions of Prime Minister Lee Hsien Loong and the Singapore Judiciary."

23. I also found that the pavement where the Accused stood was a place to which members of the public have access as of right.

1^ST CHARGE (MAC905633/2017): PROTEST AT RAFFLES PLACE MRT ON 3 JULY 2017

24. This incident was captured by the Polcam (PI2). The video footage showed the Accused was standing outside the Raffles Place MRT exit, on 3 July 2017 from about 1201hrs. This is clearly a place where members of the public have access as of right. The Accused was speaking into a loudhailer (P2) held in his right hand and holding a placard (P3) in his left hand. One side of the placard showed the words "PM LEE: RESIGN OVER TERREX CONSPIRACY", and the reverse side "NO JUDICIAL CORRUPTION IN SUPREME COURT". From the contents of the placard, I found that the Accused was conducting a demonstration against the actions of Prime Minister Lee Hsien Loong, and the Singapore Judiciary. This was corroborated by the Accused's statement (P10) recorded by ASP Sim Yi Cheng (PW5) on 3 July 2017, in which the Accused refused to answer ASP Sim' s questions but referred to his YouTube video entitled "Why should PM Lee Hsien Loong resign over abuse of power" as "his statement". In this YouTube video (P14) (the accused's self-written transcript of the video is at P15), the Accused expressed various grievances against the actions of the Prime Minister in relation to the Terrex vehicles belonging to Singapore which were seized by the Hong Kong authorities and the actions of the Singapore Judiciary. I accepted the submission of the prosecution that "[t]he natural inference from his referring to the said video as "his statement" is that the 3 July 2017 protest was held to demonstrate his opposition to the actions of Prime Minister Lee Hsien Loong and the Singapore Judiciary." In addition, in P11, the Accused's email to the Police on 3 July 2017, stated that he "will stage a protest at the central square outside Raffles Place MRT station at 12 noon on July 3, 2017 to back my Youtube video "Why should PM Lee Hsien Loong resign over abuse of power".

25. In these circumstances, I found the Accused did take part in in a public assembly outside the Raffles Place MRT exit on 3 July 2017, within the meaning of s 2 POA, for the purposes of s 16(2)(a) POA. Further, it is common knowledge that the place outside Raffles Place MRT is a place to which members of the public have access as of right.

2^ND CHARGE(M.AC905634/2017): PROTEST AT RAFFLES PLACE ON 4 JULY 2017

26. On 4th July 2017, outside the Raffles Place MRT exit, the Accused was again captured by the Po1cam footage (P13) using a loudhailer (P5), and a placard (P6) similar to P2 and P3 which were seized from him upon his arrest on 3rd July 2017. The Po1cam footage for that day (P13) showed the Accused was speaking into a loudhailer (P5) held in his right hand and holding up the placard (P6) from about 12.56pm on 4 July 2017. The Accused continued doing so even after the arrival of the police officers at the scene. His actions were also captured by ASP Joey Tham (PW2) and SSI Phua Buak Khian's (PW3) in their respective BWCs. The Accused's actions were similar to the incident that took place on 3^rd July 2017 for which he had been arrested and charged.

27. Given the similarities with the 3rd July 2017 protest, I was of the view that the Accused's action on 4th July 2017 was also meant to demonstrate opposition to the actions of Prime Minister Lee Hsien Loong and the Singapore Judiciary. Moreover, on this occasion, the Accused also shouted things like "PM Lee Hsien Loong is deeply corrupt" and "what's wrong with protesting against corruption in public" as he was escorted away by the arresting officers.

28. In these circumstances, I held that the Accused did take part in a public assembly outside the Raffles Place MRT exit on4 July 2017, within the meaning of s 2 POA, for the purposes of s 16(2)(a) POA.

NO PERMIT WAS OBTAINED FOR EACH OF'TIIE FOURPUBUC ASSEMBLIES

29. ASP Vincent Ang (PW4) testified that no permit was granted under s 7 of the POA in respect of the four protests mentioned above. In fact, the Accused did not even apply for such a permit. PW4's evidence was not challenged by the Accused.

30. I will now proceed to consider the 5^th charge against the Accused.

ELEMENTS OF THE S20 MOA OFFENCE

31. There is no statutory definition of "disorderly behaviour". But the court in PP v Iberahim [2003] SGDC 182 at [22] approved the following definition of "disorderly" in relation to offences under s 20 MOA:

"In Black's Law Dictionary the word "disorderly" means "contrary to rules of good order and behaviour; violative of the public peace or good order; turbulent, riotous or indecent" and "disorderly conduct" is defined as " ... generally any behaviour that is contrary to law, and more particularly such as tend to disturb the public peace or decorum, scandalise the community, or shock the public sense of morality. An offense against public morals, peace or safety ... (see page 469 of Black's Law Dictionary, 6th Edition). "

32. The Accused's belligerent conduct towards the police officers on 4th July 2017 was captured on the Po1cam (P 15) and from ASP Tham's and SSI Phua's respective BWCs (P4 and P7). The video footage was shown in court. I agreed with the Prosecution that the footage showed that:

"(a)The accused began yelling at the police officers using his loudhailer from a distance upon noticing their arrival at the scene.

(b)The accused repeatedly demanded that the police officers explain to the onlookers why he had been released after his arrest on 3 July 2017, despite ASP Tham explaining that she was not going to discuss the events of 3 July 2017 and wished to only discuss the present day (4 July 2017). {See P4 at time stamp l3:14:36.} He shouted, "tell the general public, why did you release me". {See P4 at time stamp 13: 15 :36.} {Annotation added}

(c)The accused continued yelling at the police officers through the 10udhailer when they had engaged him and were standing right in front of him.

(d) Throughout the time the accused was yelling over the loudhailer, he was challenging police authority in full view of the large crowd that had gathered. He shouted at them, "you do not represent justice, I represent justice", {see P4 at time stamp 13:14:27} "the general public is looking at you", {see P4 at time stamp 1313: 15: 13} "you are using force on me", {see P4 at time stamp 13:15:45} and that their arrest on 4 July 2017 contravened "equal protection under the law". {See P4 at time stamp 13: 14:51} {Annotations added}

(e)The accused was uncooperative while he was being arrested and initially refused to release the loudhailer and the placard he was holding. This led to the placard becoming damaged.

(f)The accused continued shouting and raising his voice at the police officers while being led to the police car, in full view of the large crowd that had gathered in the area."

33. Bearing in mind the definition of "disorderly" and "disorderly conduct" in Black's Law Dictionary and having viewed the video footage, I was of the view that the Accused's conduct and behaviour constituted disorderly behaviour in that he shouted at the police officers and disturbed the public peace and caused annoyance.

THE DEFENCE

34. Not only that the Accused did not choose to cross-examine the Prosecution's witnesses in most cases, he also did not give any evidence in his defence. He merely made statements from the dock claiming that it was an unfair trial and insisting on his right to remain silence. In those instances when he questioned the witness, the questions were irrelevant. He also tendered a written submission at the end of the whole case. See exhibit D 1. In it were irrelevant issues and with respect, has no merit at all.

GUILTY AND CONVICTED

35. At the end of the case, having reviewed the evidence and the submissions, I was satisfied that the Prosecution has proven all the 5 charges beyond a reasonable doubt. Accordingly, the Accused was found guilty and convicted.

ANTECEDENTS

36. The Accused was traced for similar offences. In 16 June 2016, the Accused was convicted of two offences, namely, for taking part in a public assembly which he knew was prohibited by an order (s15(2) POA) and for taking part in a public assembly without a permit (s16(2) of the POA). See PP v Yan Jun [2016] SGMC 24.

He was fined $3,000 (i/d two weeks' imprisonment) and $2,000 (i/d one week imprisonment) respectively.

MTI1GATION

37. In mitigation, the accused tendered a written submission. With respect, I found it was totally lacking in mitigating factors.

ADDRESS ON SENTENCE

38. The Prosecution tendered a written submission on sentence. In short, the Prosecution submitted for the maximum fine of $5,000 for each of the four POA Charges and a custodial sentence of at least 3 weeks' imprisonment for the MOA Charge.

SENIENCING CONSIDERATIONS

39. I agreed with the Prosecution that specific deterrence should be the predominant sentencing consideration in this case given the blatant disregard for the law by the Accused and the unrelenting offending behaviour of the accused person.

PRESCRIBED PUNISHMENTS

40. In respect of the offence under s16(2)(a) POA, the punishment prescribed for a repeat offender is fine up to a maximum of $5000. The penalty prescribed for disorderly behaviour under s20 MOA is fine up to $2000 or imprisonment not exceeding 6 months or both.

AGGRAVATING FACTORS

41. The Accused is traced for similar offences which he committed in 2016. He was convicted of two offences under the POA - the first was under s 15(2) of the POA for taking part in a public assembly which he knew was prohibited by an order under the POA; and the second was under s J6(2)(a) of the POA for taking part in a public assembly without a permit. He was fined $3,000 (i/d two weeks' imprisonment) for the first charge and $2,000 (i/d one week imprisonment) for the second charge.

42. The Prosecution highlighted that the Accused had re-offended while he was on court bail. This was in respect of taking part in a public assembly without permit outside the US Embassy on 20 Qct 2016. See MAC 906055/2017. Within 2 months after the Accused was released from his last sentence in Oct 2016, he held a further protest outside the British High Commission on 23 December 2016. This resulted in another charge against him. See MAC 90605612017. This was followed by 2 other offences committed in 2017. It demonstrated that the punishments he received for his previous offences had no effect on him. His unrelenting offending conduct needed to be deterred specifically.

43. I also noted that for the present offences, the Accused had committed a spate of offences within a short period of time. It was not only indicative of his blatant disregard for the law but also an escalation of the offending behaviour. It was clear that he needed a permit to take part in a public assembly as he had been convicted for a similar offence before. He even had the audacity to send an email to the Police on 3rd July 2017 stating that he would be staging a protest on the same day and that he had no intention of applying for a permit. See exhibit P11. The Accused was also very calculative in determining where to stage his protests. He not only did it outside the Raffles Place MRT exit but also outside the foreign embassies. His conduct was clearly calculated to inflict the maximum damage to the Prime Minister and the Singapore judiciary. His conduct in each occasion was also becoming more extreme and aggressive. For the incidents on 20th October and 23rd December 2016, the Accused had merely held up placards and engaged in a measured protest outside the embassies. On the other hand, for the 3rd and 4th July 2017 incidents, the Accused took to shouting over a loudhailer, in an obvious bid to attract the attention of the Raffles Place lunch-time crowd. Most egregiously, on 4th July 2017, the Accused used the loudhailer to yell at the uniformed police officers in a bid to challenge and undermine their lawful authority in front of the on-lookers.

44. Next, the Accused did not express any remorse. His behaviour in court was also contemptuous by alleging that the trial was unfair and that he was asked to attend court against his will. He even made demand to summon the Attorney General and the Solicitor General to attend court for no valid reason.

45. I was mindful that the latest IMH report dated 18^th July 2017 found that while the Accused displayed querulous behaviour, he was not mentally ill currently or at the time of the offences, and was fit to plead. The report also highlighted that "[t]here is a high risk of recurrence and a possibility that there may be further escalation in future incidents with uncontained anger, with a need for vengeance and vindication of his stand."

THE SENTENCE

46. The Accused was clearly a recalcitrant offender and had displayed a blatant disregard for the law with unrelenting offending behaviour. These coupled with the aggravating factors and lack of mitigating circumstances, warranted the maximum penalty to be imposed. Accordingly, I sentenced the Accused to the maximum fine of $5000 for each of the 4 POA charges, amounting to a total fine of $20,000. In default of payment, the Accused was to serve a total default imprisonment term of 12 weeks which was discounted for the fact that the Accused has been in remand for a period of time from 5th July 2017. If he had not been in remand, I would have ordered a default sentence of 5 weeks' imprisonment for each of the $5000 fine. The default sentence is well below the maximum imprisonment term of 6 months prescribed for default of payment of fine. See s319 (l)(d) CPC.

47. As for the MOA charge, I agreed with the Prosecution that a fine would be inappropriate in view of the aggravating factors. Firstly, viewed from the entire history of the Accused's offending conduct, it was clear to me that there was a marked escalation of his offending behaviour. Despite the fact that he was not brought to court for the incident that happened on 3rd July 2017, he proceeded to return to the same place the next day to stage a protest again but with more belligerent behaviour and clearly calculated to provoke the law enforcement agencies to take action against him. Based on P4, the BWC footage, it clearly showed that the Accused had openly and brazenly challenged and using the loudhailer to yell at the police officers in the view of the general public. It is in the public interest to ensure that the lawful authority of the police officers be not undermined. A fine in such a case would not be adequate. Next, I considered the duration of the said incident. Based on the time-stamp in P4, it lasted about 5 minutes. I noted that the Accused resisted arrest and continued to behave in a disorderly manner even after his arrest. The whole incident also attracted a large crowd to witness the commotion. The incident area was also a public place that experienced high volume human traffic at the material time. In my view, if the incident was not well managed it could escalate into a riot or other form of public disorder and thereby endanger public safety. Such conduct cannot be condoned and must be deterred. For all these reasons, the aggravating factors highlighted above and the lack of mitigating factors, I sentenced the accused to an imprisonment term of 3 weeks for the MOA charge.

CONCLUSION

48. For the sentence in respect of the offence under s20 MOA, it was backdated to 5th July 2017, the date from which he was in remand. He was in remand for about I month and 10 days before he was convicted and sentenced. For the offence under sl6 (2)(a) POA, the Accused was sentenced to a total fine of $20,000 and in default of payment, to serve a total jail term of 12 weeks.

49. Although the Prosecution highlighted that the court has a discretion not to backdate the sentence, I was of the view that not to backdate the sentence would result in a crushing sentence on the Accused. Moreover, the offence under s20 MOA, in my view, constituted one transaction with the charge in MAC 905634/2017. At the end of the day, given that the sentence of 3 weeks was backdated to 5th July 2017, the Accused needed only to pay $20,000 and in default of payment, to undergo 12 weeks' of imprisonment. In my view, having taken into account the public interest, the sentence was proportionate to the Accused's culpability and the harm caused.

Ng Peng Hong

District Judge

DPP RAN DEEP SINGH, DPP VICTORIA TING, DPP SHAMINI JOSEPH

(10 AUGUST 2017 - 11 AUGUST 2017 & 14 AUGUST 2017),

Attorney-General's Chambers, for the Public Prosecutor

Accused in person