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Public Prosecutor
v
Yan Jun
[2017]
SGMC 76
District
Court - MAC 911994/2017
Magistrate
's Appeal No. 9374/2017/01
District
Judge Lim Tse Haw
5
and 6 December 2017
18
December 2017
District
Judge Lim Tse Haw:
INTRODUCTION
1.
The
accused person, Yan Jun ("the Accused") claimed trial to one charge
summarized as follows:
MAC 91199412017
On 23 November
2017, at about 12.01 pm, outside Raffles Place MRT Stat ion. located at 5
Raffles Place, Singapore, the Accused did take part in a public assembly [n respect
of which no permit had been granted, to wit. by demonstrating opposition to the
actions of the Prime Minister of Singapore, the Singapore government and the
Hong Kong government. by:
a.
displaying
a placard with the words "PM Lee: resign over the Terrex conspiracy or sue
me for defamation", and shouting “protest against PM Lee Hsien Loong,
resign!”;
b.
shouting
“protest against the PAP government!”; and
c.
displaying
a placard with the Chinese characters “抗議香港政府在裝甲車陰謀中出賣中國主權!” which means “Protest
against the Hong Kong government for betraying the sovereignty of China in the
armoured vehicles conspiracy!” in the English language, and shouting
"protest against the Hong Kong government!” and he has thereby committed
an offence punishable under Section 16(2)(a) of the Public Order Act (Cap 257A,
2012 Rev Ed) ("the Act").
2.
Further,
as the Accused had, before the commission of the above offence, on 14 August
2017, in State Court 4, been convicted of the same offence and was sentenced to
a fine of $5,000 (in default 3 weeks' imprisonment), which conviction and punishment
have not been set aside to date, he was thereby liable for enhanced punishment
of a fine of up to $5000 under Section 16(3)(b) of the Act.
3.
After
a two-day trial, I found the Accused guilty of the charge and convicted him
accordingly. I now set out below the full grounds for my decision.
THE PROSECUTION'S
CASE
The Background Facts
1.
On
7 November 2017, the Accused wrote an email to Prime Minister Lee Hsien Loong
("PM Lee"), which was copied to various other parties, to say that he
was "going to make another protest outside Raffles Place MRT on November
23, 2017 at 12 noon" on the purported "Terrex issue"- referring
to the seizure by the Hong Kong Customs Department of nine "Terrex"
military armoured vehicles belonging to the Singapore Armed Forces on 23
November 2016 and that he had "no intention of applying for a protest
permit because the licensing officers are corrupt".[1] He
also posted this email on his blog in the internet. ASP Chionh Chun Meng Eric
("ASP Chionh") from the Singapore Police Force ("SPF")
responded to the Accused on 18 November 2017 and reminded the Accused that
organising or taking part in an assembly without a police permit is an offence
under the Act. The Accused replied to ASP Chionh on 19 November 2017 saying
that he "will protest as scheduled ......” [2]
These exchange of emails were similarly posted on his blog.
(B) The Protest on 23 November 2017 at Raffles Place
MRT
2.
On
23 November 2017 at about 12.0Ipm, the Accused did carry out his protest
outside Raffles Place MRT Station at 5 Raffles Place. The Accused can be seen [3] standing
outside Raffles Place MRT Station holding up two placards, bearing the words
"PM Lee: resign over the Terrex conspiracy or sue me for defamation” [4] and
抗議香港政府在裝甲車陰謀中出賣中國主權!”[5] According
to Ms Seta Xin Er, a Chinese translator from the Criminal Investigations
Department ("CID") of the SPF[6], these
Chinese characters translate to mean "Protest against the Hong Kong
government for betraying the sovereignty of China in the armoured vehicles
conspiracy"[7].
In the footages[8],
the Accused can also be heard shouting "protest against the Hong Kong
government!", protest against the PAP government!"' and "protest
against PM Lee Hsien Loong, resign!"
3.
The
arresting officer, Senior Staff Sergeant Ahmad Salihin[9], together
with a few other police officers, then moved in and arrested the Accused. The
two placards and a loud hailer[10],
which the Accused had used in his protest, were seized.
4.
In
the Accused 's police statement dated 23 November 2017[11],
the voluntariness of which he did not dispute, the Accused stated that he had
made it very clear in his email dated 7 November 2017 to PM Lee that he would
stage a protest in support of his allegations against PM Lee in what he called
the "Terrex conspiracy issue".[12]
5.
Assistant
Superintendent of Police (ASP) Ang Huan Chau Vincent[13]
from the Compliance Management Unit of the SPF testified that no permit was
issued to the Accused for him to carry out his assembly in public on 23
November 2017.
THE DEFENCE'S CASE
The Accused’s
Evidence
6.
The
Accused did not dispute the fact that he was protesting against PM Lee and the
governments of Hong Kong and Singapore as stated in [5] above. His main defence
was that he knew that he was not going to get a police permit for his intended protest,
as he alleged that he was under a "prohibition order" by the police
from holding a protest. Hence he decided that there was no point for him to
apply for one and proceeded with his protest without a permit.
7.
The
Accused did not call any other witness in his defence.
THE LAW
8.
Section
16(2)(a) of the Act states that:
"Each person
who takes part in a public assembly ... ----
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 ... "
9.
Section
5(1) (a) of the Act further states that:
"Subject to
the provisions of this Act, a public assembly ... shall not take place
unless-
a.
the
Commissioner is notified under section 6 of the intention to hold the
public assembly
..., and a permit is granted under section 7 in respect of that
public assembly
...., :"
10.
Section
2 of the Act defines "public assembly" to mean "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.
"Assembly"
is further defined in section 2 of the Act to mean:
"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--
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) .... "
[emphasis added]
12.
On
the meaning of "taking part in", section 3(2) of the Act clarifies as
follows:
"A reference
to a person or persons taking part in an assembly ... shall include, as the case
may be, a person carrying on a
demonstration by himself, ..., for any such purpose referred to in the
definitions of an assembly ... in section 2(1)”
[emphasis added]
13.
In
other words, a person carrying on a demonstration by himself against the views
or actions of a person, group of persons, or any government, in a public place
can come within the meaning of ''taking part in a public assembly" for the
purposes of
section 16(2)(a)
of the Act.
MY DECISION
(A) Did the Accused take part in a public assembly?
14.
The
Accused did not dispute the fact that:
i. He was He was
standing outside Raffles Place MRT Station holding up two placards that read:
a.
“PM Lee: resign over the Terrex conspiracy or
sue me for defamation”;
b.
"Protest against the Hong Kong government for
betraying the sovereignty of China in the armoured vehicles conspiracy"
in Mandarin; and
ii. He was shouting
out the words:
a.
''protest against
the Hong Kong government!";
b.
"protest against the PAP government!";
and
c.
''protest against
PM Lee Hsien Loong, resign!"
15.
The
act of carrying the two placards with its wordings in [17(i)] above, coupled
with shouting out the words in [17(ii)] clearly showed that the Accused was demonstrating
opposition to the views and/or actions of a person (PM Lee) and the governments
(Hong Kong and Singapore governments) within the meaning of "assembly"
as defined under section 2 of the Act. Section 3(2) of the Act also makes it clear
that "taking part in an assembly" includes a person carrying on a
demonstration by himself. As the outside of Raffles Place MRT Station is
clearly a public place, there was no question that the Accused was taking part
in a public assembly within the meaning of section 16(2)(a) of the Act.
16.
It
was also not in dispute that the Accused did
not have a permit from the police to take part in this public assembly on
23 November 2017.
(B) Did the Accused raise any valid defence in law to
the charge?
17.
The
Accused's defence to the charge was that because he knew that he was not going
to get a police permit for his intended protest on 23 November 2017, he decided
that there was no point for him to apply for one and proceeded with his protest
without a permit nevertheless. This is not a valid defence under the law.
18.
Section
17 of the Act affords a statutory defence to an accused person charged with an
offence under section 16(2)(a) of the Act if he can demonstrate that he "did not know, and neither suspected nor had
reason to suspect that no permit had been granted”. The Accused did not
avail himself of this statutory defence at the trial. Based on his own
evidence, he clearly knew that he needed a permit from the police to allow him
to carry out his demonstration at Raffles Place MRT on 23 November 2017. However,
he decided not to apply for one as he said he knew that he was not going to be
given a permit by the police. By deciding to go ahead with the demonstration on
23 November 2017 without applying for a police permit under section 7 of the
Act, the Accused has clearly committed an offence under section 16(2)(a) of the
Act.
19.
In
the circumstances, I found the Accused guilty of the charge and convicted him
accordingly.
ANTECEDENTS
20.
The
Accused had been convicted of the same offence on two previous occasions as
follows:
iii. On 16 June 2016,
he was convicted in State Court No.7, inter
alia, of one count of taking part in a public assembly without permit under
section 16(2)(a) of the Act. He was fined $2000, in default one week
imprisonment for the charge. His appeal against the conviction and sentence was
dismissed by the High Court on 21 October 2016[14];
iv. On 14 August 2017,
he was convicted in State Court No 4, inter
alia, of four counts of taking part in a public assembly without permit
under section 16(2)(a) of the Act. He was fined $5000, in default three weeks' imprisonment
for each charge. His appeal against the conviction and sentence was also
dismissed by the High Court on 26 September 2017.[15]
MITIGATION
21.
The
Accused refused to mitigate but asked that his remand period be taken into
account in sentencing.
THE PROSECUTION'S
SUBMISSIONS ON SENTENCE
22.
The
Prosecution pointed out that as the Accused had previously been convicted of
the same offence, he was liable for enhanced punishment of a fine of up to $5,000
under s 16(3)(b) of the Act as a repeat offender. In view of his propensity to
reoffend, the Prosecution submitted that specific deterrence should be the
predominant sentencing consideration in this case.[16]
23.
The
Accused was described by the Prosecution as a "serial recidivist who has shown blatant disregard for the law, and
contempt for all forms of lawful authority.”[17] It
was noted that even the maximum sentence that was imposed on him for his latest
set of antecedents did not deter him from committing the present offence, which
was committed less than two months after he completed serving his last sentence.[18]
24.
The
Prosecution submitted that the Accused had courted criminal charges because he
wanted to use the trial process as the platform for his personal agenda of maligning
the various stakeholders in the criminal justice system. He also displayed contemptuous
behaviour towards the Court throughout the trial and repeatedly demanded that
he be cited for contempt.[19]
25.
Hence,
the Prosecution pressed for the maximum fine of $5,000 to be imposed with an in
default term of not less than five weeks' imprisonment.[20]
26.
The
Prosecution further submitted that the in default term should not take into
account the period the Accused had already spent in remand for the following
reasons:[21]
v. An offender does
not have a right to have an in default sentence discounted, or have an
imprisonment sentence backdated in view of time spent in remand. The exercise
of the court's power in discounting time spent in remand for in default
sentence or backdating is discretionary and involves a fact-sensitive
determination;
vi. The primary aim in
imposing an in-default term is to deter non-payment of fines and to ensure
sufficient punishment should the offender default on paying the fine. The
Prosecution submitted that the circumstances in the present case strongly
suggested that the Accused was unwilling
to pay the fines imposed as opposed to him not
having the funds to do so. In support of this submission, the Prosecution
highlighted that the Accused had asked for his bail to be offered in the form of
personal bond. This suggested that the Accused had the funds to pay any fine
that might be imposed on him and hence discounting his in-default sentence
would only further dis-incentivize him from paying the fine. This would defeat
the purpose of imposing an in-default term in the first place;
vii. Any prejudice that
might be occasioned to the Accused from his spending time in remand was
completely self-induced in view of the "extravagant manner" in which
the Accused had conducted his defence at his various trials, which showed that
he was only interested in using the courtroom as a platform for airing his
personal agendas;
viii. In any event, any
unfair prejudice to the Accused had been avoided as the present trial was heard
on an expedited basis;
ix. Discounting the
in-default term would encourage the Accused to keep up with his routine of
courting criminal charges by committing offences and then claiming trial when
he has no defence whatsoever- this would be contrary to the predominant
sentencing consideration of specific deterrence applicable in the present case.
THE APPROPRIATE SENTENCE
27.
In
sentencing the Accused, I agreed with the Prosecution that in view of his antecedents
and propensity to re-offend, the predominant sentencing consideration in this
case must be that of specific deterrence.
28.
I
further agreed with the Prosecution that the maximum sentence of a $5000 fine
should be imposed on the Accused for the following reasons:
x. The maximum
sentence of $5000 fine was imposed on the Accused on each count of the same
offence when he was last convicted of four counts of such offence on 14 August
2017. The sentence was affirmed by the High Court on appeal by the Accused. Yet
that has not deterred him from re-offending less than two months after his
release from prison;
xi. His conduct at the
trial was reprehensible and contemptuous. He had no regard for the law, for
legal procedure and had no respect for the various stakeholders in the criminal
justice system. Apart from accusing everyone, from the police to the Attorney-General's
Chambers and even the Court of being corrupt, the Accused had the temerity to
turn his back to the Court when I tried to point out to him that he may have
misconstrued the Singapore Constitution in thinking that he had an unfettered
right under the Constitution to stage a protest;[22]
xii. Based on the two
psychiatric reports[23]
that were prepared on the Accused for his previous cases, he was not suffering
from any psychiatric or mental disorder that could have contributed to the
commission of the offences by him. He was only diagnosed with Querulous
Behaviour, with narcissistic personality traits.[24]
29.
On
the question of in default sentence, I also agreed with the Prosecution that an
in default sentence that is longer than the three weeks' imprisonment term that
was imposed for his previous conviction on 14 August 2017 should be considered
in the present case. This is to give effect to the dominant sentencing
consideration of specific deterrence in the present case. Otherwise, the Accused
will go away thinking that the worst that can happen to him, even if he were to
keep committing the same offence over and over again and to not pay the fine,
would be to serve in default sentence of three weeks' imprisonment. In fact,
that was what he had tried to ask for in his submission on sentence.[25]
Hence, to ensure that the principle of specific deterrence has its intended
effect, an in default sentence of more than three weeks' imprisonment ought to
be imposed on the Accused.
30.
However,
where I differed from the Prosecution was in relation to the question of
whether the Accused's remand period should be taken into account when considering
the in default sentence.
31.
With
respect, I was not able to agree with the Prosecution's submission at [29(ii)]
above that the circumstances in the present case strongly suggested that the Accused
was unwilling to pay the fines imposed as opposed to him not having the funds
to do so. The fact that he had asked for the bail of $8000 offered to him to be
in the form of a personal bond did not mean that he had the funds to pay any
fine that might be imposed on him. The difference between a personal bond and
the usual court bail is that in the latter case, an accused person needs to
find a bailor who is willing to stand bail for him and who has assets worth at
least the amount of the bail. In the former case, the accused person is his own bailor so long he has assets worth at least the amount of the
bail. For a bail of $8,000, no cash or cash equivalent is required as security
for the bail bond in both cases. Hence, the fact that the Accused had asked for
the bail to be in the form of a personal bond did not mean that he had the funds to pay any fine. It could be
that the Accused did not have any family or friend who was willing to stand
bail for him, for whatever reasons.
32.
I
was also not able to agree with the Prosecution's submission at [29(iii)] above
that the prejudice, if any, that might be occasioned to the Accused from his spending
time in remand was completely self-induced in view of the "extravagant manner"
in which the Accused had conducted his defence at his "various
trials". While I am not in a position to comment on the Accused's conduct
at his other trials, his conduct at the trial before me, while contemptuous and
belligerent, did not, in my view, deliberately or unnecessarily prolong the
trial. The present trial took only two days to conclude. In my judgment, the
court may exercise its discretion in not
taking into account an accused person's remand period if there is evidence
to show that the accused has deliberately or unnecessarily prolong the trial
for some personal gain or advantage- for example, an accused person who is
close to 50 years old and facing a charge which carries mandatory caning, who
deliberately or unnecessarily prolong the trial just so that if he is found guilty of the charge
eventually, he would have turned 50 years old and is therefore no longer
eligible for caning. This was not the case here and
36. In the
circumstances, for the reasons as stated in [31] and [32] above, I imposed the maximum
fine of $5000 on the Accused. I had decided, provisionally. to impose an in default
sentence of 50 days' imprisonment. However, taking into account the 13 days that
he had already spent in remand from the day he was charged in coming to the day
he was sentenced[26],
I imposed an in default sentence of 37 days' imprisonment if the Accused did
not pay the fine.
Concluding remarks
37. The Accused lacked
insight into his behavioural problem. Coupled with his illusion of some grand
conspiracy theory, in the present case relating to the Terrex armoured vehicles
incident, and his inability or refusal to see the folly of his ways, the
Accused has rendered himself a public nuisance by his latest actions. He would
be well advised to seek treatment for his behavioural problem in order for him
to stay out of trouble with the law and for some normalcy to return to his
life.
38. Being dissatisfied
with the above judgment, the Accused has appealed against both conviction and
sentence. He is still serving his in default sentence at the time of the issuance
of this judgment.
Lim
Tse Haw
District
Judge
DPPs Randeep Singh
and Victoria Ting for the Prosecution;
The Accused in
person
[1] P2 at page 4, under the heading
"My legal position"
[2] P3 at pages 3 and 4.
[3] Please see footages from the
Body-Warn-Camera ("BWC") worn by PW1 (exhibit P4), the Police Camera
("Polcam"- exhibit PS) and the Public Order Video Team
("POVT"- exhibit P6).
[4] P8
[5] P9
[6] PW3
[7] P17
[8] P4 and P6.
[9] PW1
[10] P7
[11] P10
[12] Page 1, first paragraph of P10
[13]
PW 2
[14] See Certificate of result of
appeal in MA NO.9131/2016/01 in Yan Jun v PP.
[15] P12
[16] Prosecution's Address on Sentence
("PAS") at [7] and [8]
[17] PAS at [1]
[18] PAS at [16(b)]
[19] PAS at [3] and [25]
[20] PAS at [4] and [29] to [41]
[21] PAS at [42] to [49]
[22] Notes
of Evidence (NE) Day 1, page 52 In 2 to page 55 In 21
[23] Reports from the Institute of
Mental Health (lMH) dated 26 April 2016 and 18 July 2017
[24] See [1] under "Opinion"
of the IMH report dated 26 April 2016 at page 4 and [31 (a) and (h)] under
"Opinion" of the IMH report dated 18 July 20167 at pages 7 and 9
[25] NE Day 2, page 11 In 18 to 25
[26] From 24 November to 6 December
2017.
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