The Appellant’s comments on the Judgment of [2014] SGCA 60
Introduction
While
Yan Jun brought the suit against the Attorney-General of Singapore on
1 April 2013 for a serious of offences including wrongful arrest and
false imprisonment and requested for damages totaling 1.22 million,
most of his claims had been struck out by the learned Assistant Registrar (AR)
on 3 July 2013.
Unsatisfied with the learned AR’s reasoning, Yan Jun appealed against the AR’s decision and his appeal
was dismissed before a
High Court Judge. (See Yan Jun v Attorney-General [2013]
SGHC 245). While Yan Jun’s appeal was dismissed again, he furthered his
appeal and his case was heard before the Court of Appeal on 9 May
2014 before 3 Judges.
The judgement had been reserved since 9 May and finally
released on 27 November 2014 (See Yan Jun v Attorney-General 2014
[SGCA] 60) but Yan Jun was still unhappy with the judgement. 5 days
after he received the judgement, or 3 December 2014, he sent to
the Court by email his comments /criticisms in which he reasoned 2014
[SGCA] 60 as "seriously flawed".
On 15 December 2014, the
Court replied that "1.We refer to your email dated 3 December 2014
and the corresponding attachment. 2. Please be informed that the contents
of the email and the attachment have been placed before the Court. The Court
will not be responding to the comments found in
the attachment. 3. Thank you."
As of the date when this post is published
(31/12/2014), Yan Jun still considers the reasoning in 2014
[SGCA] 60 seriously flawed. The limitation period in police
misconduct cases is 6 years as the causes of action is not "breach of
duty" but "loss of qualified immunity". As for the Interpretation of
Article 9(4) of the Constitution of Singapore, the 48 hours run from the
point of arrest according to the Presumption of Innocence,
Yan Jun's comments/criticisms on 2014
[SGCA] 60 are as follows:
****************
1. It seems
to the Appellant that the Court and the Appellant examined the same issues from
a different angle so they reached different conclusions.
Does “every man” standard apply to police
officers performing their duties?
2. The Court
examined tortious liability in general and concluded that the phrase “breach of
duty” in s24A (1) encompassing all torts[1]. The Court’s position can be summed up
with what Lord Denning observed in Letang that “there is a
duty owed by every man not to injure his neighbor in a way that is forbidden by
law”[2]. The Court further ruled that this “every man”
standard did apply to police officers performing their duties
and as such, “if the police officer did not owe any duty to the Appellant,
the Appellant would not have a cause of action against the police officer in
the first palace”[3].
3. The
Appellant’s analysis focused on tortious liability in police misconduct and
concluded that the “every man” standard didn’t apply to police
officers performing their duties. In other words, a police officer doesn’t owe
a suspect a duty not to injure him when arresting him[4].
The cause of action in the present case is not “breach of duty” but “loss of
qualified immunity”.
Qualified immunity
4. Police
officials performing their duties are shielded from liabilities.[5]The recognition of a qualified immunity defense balances
two important interests—the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably[6]. Police officers are entitled to qualified immunity
unless “(1) the officers’ conduct violates a statutory or constitutional right,
and (2) the right was clearly established at the time of the conduct, such that
(3) an objectively reasonable officer would have understood that the conduct
violated that right.”[7]
5. In the
present case, the SPF officer arrested the Appellant for a PPO violation based
on an expired Expedite Order (EO) so he violated the Appellant’s right to
liberty. This right to liberty was clear established in the Constitution at the
point of the arrest and an objectively reasonable officer certainly would not
make an arrest without reasonable suspicions. While this SPF officer may argue
that a reasonable police officer would not necessarily know specific family
law, however, a reasonably competent public official should know the law
governing his conduct. For these reasons, the SPF officer lost his qualified
immunity at the point of the arrest as a result of his mistake of law.
6. While any
injury caused by an ordinary citizen constitutes a tort by default, any
injury caused by police officers on suspects are lawful by default unless the
officers loss their qualified immunity. False imprisonments in police
misconduct is mostly founded on “loss of qualified immunity” as a result of the
officer’s mistake of law. Such cases fall into the category of strict liability
tort.
“Voluntary act” test for “breach of duty”
7. What
criterion is used to determine a person’s duty not to injure the others? In Hoare, the
defendant Hoare was held to have breached his duty not to injure the others
during his sexual assault actions. But would Hoare have breached this very duty
if he had been an insane person? The Appellant would answer in the negative
because insane persons are totally unable to be responsible for their actions[8]. Their involuntary actions make them
absolute immune from the duty not to injure the others. While an ordinary
citizen acts in his own free wills and for his own benefits, a
police officer performing his duty in the public interest and
consequently, the officer is not allowed to act in his own free will.
8. Like
insane persons’ actions, police officers’ actions are involuntary in
the sense that officers must act on objective reasonableness such as reasonable
suspicion but not their subjective beliefs. It is evident that even if an
officer subjectively considers a suspect innocent, he has no choice but to
arrest the suspect if he has reasonable suspicion to believe that the suspect
has committed a crime. In other words, police officers on duty don’t owe
suspects a duty not to injure them.
9. As the
learned author of “The law of torts in Singapore” observed that “As a fundamental
starting point (of intentional torts), the defendant’s act must be voluntary, ie,
a result of conscious acts, in contrast to the acts of a sleepwalker or an
intoxicated defendant”[9]. If a person was arrested on a
reasonable suspicion but his charge was later dropped due to insufficient
evidence, he was unable to bring a suit against the police. Since the police
officers were immune from the duty not to injure a suspect, this person didn’t
have a cause of action.
Can police misconduct be founded on “breach
of duty”?
10. Yes, it can as long as the
misconduct is made out of the police officer’s own free will such
as malice but not his objective reasonableness. Qualified immunity and immunity
from the duty not to injure a suspect are not the same thing.
The former stems from police officers’ duties to prevent crimes and the latter
is up to officers’ state of mind. If an officer made a mistake of law but
doesn’t use his own free will in performing his duty, like the officer in the
present case, he will loss his qualified immunity but will still be immune from
the duty not to injure the suspect.
11. This point can be easily
illustrated in the following case. While a police officer personally didn’t
believe that a suspect had violated a PPO, he reluctantly arrested the suspect
because he had reasonable suspicions. If the PPO was found out to be expired
later on, the officer certainly lost his qualified immunity at the point of
arrest as a result of mistake of law. But he didn’t have a duty not to injure
the suspect when arresting the suspect because his actions were involuntary (reluctantly
arrested him). Since the officer lost his immunity, he could be simplified as
an ordinary citizen at the point of arrest. He didn’t use his own free will, so
his action was involuntary.
12. In the present case, the
SPF officers arrived at the Appellant’s flat in response to the Appellant’s
call but refused to take the Appellant’ report so the officer’s action was
amount to malice. However, the case was still caused by the SPF officer’s
“mistake of law” because taking the report would not change his decision but
his knowledge of the expiration of the EO would certainly do.
Why doesn’t a police officer owe a suspect
a duty not to injure him?
13. Winfield's definition of
tort is: “Tortuous liability arises from the breach of a duty primarily fixed
by law; this duty is towards persons generally.” If law primarily empowers a
police officer to arrest a suspect on a reasonable suspicion, the same law is unable
to make, in a primary way, the same police officer under a duty not to hurt a
suspect when putting him under arrest. If a police officer has such a duty, any
arrest will be both legal and illegal. It is legal in the sense that the arrest
is justified by a reasonable suspicion. It is illegal because any arrest will
inflict injury so any arresting officer breaches his duty.
14. For above reasons, the
Appellant reserves his opinion that false imprisonment in police misconduct is
a strict liability tort founded on “loss of qualified immunity” but not “breach
of duty”. The limitation period is 6 years, pursuant to s 6(1)(a) of the
Limitation Act (Cap 163).
Constitutional right—Article 9(4)
15. For three reasons, the
Appellant respectfully disagrees with the Court’s analysis on Article 9(4).
First, the analysis contradicted the well-established principle of the purpose
of an arrest. Second, the “public interest” justification is untenable because
a judicial review of the legality of the arrest and the need for police
investigation are logically independent so cannot be balanced. Third, the
legality of “reasonable time” constructed in the judgment has violated the
Presumption of Innocence.
16. The Court started its
analysis of Art 9(4) with Prof Thio Li-Ann’s statement that the Art 9(4) was
meant to review “the legality of an arrest and detention”[10]. Next, the Court explained that “It will be evident
from the language of Art 9(4) that it requires an arrested person, if
not released earlier, to be brought before a Magistrate without unnecessary
delay”[11]. The explanation suggests that
the right against arbitrary arrest doesn’t apply to every arrested
person, which contradicts the principle of equality before the law.
“Public interest” justification
17. However, the Court went on
to explain that that “It is, however, also plainly the case that Art 9(4)
does not confer an arrested person with an unqualified right to be brought
before a Magistrate immediately upon his arrest”[12] and
“in our view, therefore, Art 9(4) requires the right of the individual
against arbitrary detention upon arrest to be balanced against
the need to afford the police reasonable time in which to carry out their
investigation”[13].
18. With respect, the Appellant
is unable to agree with this justification. Police investigations after arrests
are meant to look for evidence to lay a formal charge against suspects,
however, a judicial review of the legality of the arrest concerns only with
reasonable suspicion/probable cause, which has been established before an
arrest. Judicial reviews and the investigations are independent unless the
latter is meant to establish the former.
19. In addition, police
officers only close their investigation after a formal charge is brought
against the suspect, regardless of the completion of the judicial review.
In theory, an arrested person needs to be taken to the court twice. One for a
judicial review and the other for being formally charged. In actual practice,
the two hearings are usually combined into one. That may explain why the Court
thought that a judicial review, like laying a formal charge, would prevent
police officers from carrying out investigation.
20. In the past, judicial
reviews must be done by taking the arrested physically to the court. Nowadays,
they can be easily done by virtue means such as submission reasonable suspicion
electronically to the court for approval in the absence of the suspect, while
the police investigation is being carried out.
Legality of the “reasonable time”
21. Finally, the Court held
that “the right of the arrested person is more accurately characterized as
one to not be detained for a period that is unreasonable in
the circumstances, and which in any event does not exceed 48 hours, unless he
is brought before a Magistrate. If the arrested person is released within a reasonable
time after his arrest, he doesn’t have to be brought before a
Magistrate” [14].
22. According to the Court’s
analysis, the police procedure for a judicial review is as follows. Step 1,
Police officers arrest a suspect on reasonable suspicions; Step 2, Police
officers detain the arrested person for a period of “reasonable time’, regardless
whether the period of this “reasonable time” is fixed or flexible; Step 3,
the police officer must make a decision to release the arrested person or
not. If the decision is made before the end of the “reasonable time”, the
arrested person doesn’t need to be taken before a Magistrate; Step 4, If the
arrested person is detained beyond the “reasonable time”, the detention will be
considered “unreasonable” so the police must brought the arrested person before
a Magistrate for the judicial review.
23. With great respect, the
Appellant disagree with the Court’s opinion and if there really is a concept of
“reasonable time”, the amount of this “reasonable time” must be zero
minute based on Presumption of Innocence. In the Court’s opinion, what
the Constitution protected is not a right against arbitrary arrest and
detention, but a right against unlawful detention that is “unreasonably long”.
Supposing that a police officer arrests a suspect by handcuffing him and
immediately release the suspect to test the officer’s reasonable suspicion. If
the Court is right, this officer certainly can lawfully carry out an arbitrary
arrest without report tot the Court, because point arrest certainly cannot make
a detention that is “unreasonably long”.
24. The Court’s opinion has
raised two issues. One is the purpose of an arrest. What is a police officer
supposed to do at the point of the arrest? To take the suspect to the court in
the hope to lay a formal charge against him, or to release him before the end
of “reasonable time”? If a person can be arrested without being taken to a
court, the purpose of the arrest certainly contradicts the well-established
principle that “the purpose of the arrest is for further investigation by a
Magistrate”[15] and the very purpose laid down
in “Commentaries of the laws of England” by Blackstone[16].
If the time spent on an arrested person by the police is roughly divided into
“time for registration” (necessary and unavoidable delay) and time for
investigation, the “reasonable time” certainly falls into the category of “time
for investigation”. Therefore, it is safe to draw a conclusion from the Court’s
opinion that the purpose of an arrest is police
investigation.
25. The second issue that the
Court opinion raised is the legality of “reasonable time”. Prof Thio Li- Ann’s
statement made it clear that every arrest is unlawful by default until proved
lawful before a court, which is based on the Presumption of Innocence, or the
foundation of the Constitution.
26. The Court reasoned that “If
the arrested person is released within a reasonable time after
his arrest, he doesn’t have to be brought before a Magistrate”. It is
evident that this “reasonable time” detention starts from the point of an
arrest and ends at the point of release. If the Court considers this
“reasonable time” detention lawful, the arrested person will be “guilty of law”
during this period because the police always consider a suspect “guilty of a
crime”. This justification is against the Presumption of Innocence. In fact, if
the “reasonable time” detention is lawful, any arrest will be lawful as long as
the suspect is released within 48 hours. The amount of “reasonable time” must
be within 48hrs.
27. If the Court considers the
“reasonable time” detention unlawful, the Appellant feels difficult to
understand how the Court gets power to intentionally allow unlawfulness to take
place. The Court is supposed to uphold the rule of law and a purpose and
function of law is to protect various liberties and rights. The Appellant would humbly
request the Court to explain the concept, the purpose and the
determination/computation of the “reasonable time” in the present case to
justify why 21hours is within the “reasonable time”. [emphasis added]
Defamation
28. With respect, the Appellant
has difficulty to understand the Court’s ruling that “we agree with Mr.
Khoo’s submission that the proper defendant to such claim is the doctor himself
or his employers[17]”. While the doctor shouted out “small injury” at the
Appellant, the Appellant did suffer small injuries so the doctor’s words were
insulting but not defamatory in nature. The Appellant would suggest that the
doctor’s words can hardly make a defamation case.
29. As for the defence of
qualified privilege, the Appellant humbly disagree. There is always a
relationship between a police officer (as an authority or trust) and an
ordinary citizen as long as the officer is performing his duty to prevent
social harms. A police officer is always protected by his qualified
immunity and in no case can a police officer has a qualified privilege other
than his qualified immunity. Since the SPF officer had lost his
qualified immunity at the point of the arrest due to his mistake of law, he was
not preventing but actually committing a crime in the treatment room.
30. Technically, he was not a
policeman with trust and authority but a man in police uniform as far as the
unlawful arrest is concerned. As a result, he made no difference with an
ordinary citizen such as a patient or a cleaner and consequently, he was unable
to have any interest or duty to communicate the information with the doctor.
The Appellant humbly suggest that defence of qualified privilege fail in this
case.
Summary
The Appellant deeply respect the Judgment
but would like to reserve his positions on all his claims except the claim of
defamation.
[1] The Judgment of
[2014] SGCA 60, Para 61.
[2] Ibid, Para
36.
[3] Ibid, Para
63.
[4] The Appellant’s
Case for CA 142/2013, Para 43-46.
[5] Sorrell v. McGuigan, 38 Fed. Appx. 970, 973 (4th
Cir.2002), Part II. internal quotations omitted
[6] Pearson v Callahan (No. 07-751) 494 F. 3d
891, 2009, Part II A.
[7] Sorrell v. McGuigan, 38 Fed. Appx. 970, 973 (4th
Cir.2002), Part II. internal quotations omitted
[8] The Appellant’s
Case for CA 142/2013, Para 46.
[9] The Law of Torts
in Singapore. Academy Publishing 2011, Page. 37, Para. 02.021
[10] The Judgment of
[2014] SGCA 60, Para 90.
[11] Ibid, Para
91.
[12] Ibid, Para
92.
[13] Ibid, Para
92.
[14] Ibid,
Para 95.
[15] The Appellant’s
Case for CA 142/2013, Para 59, 64, citing Clerk & Lindsell on
Torts (20th Ed, 2010), Para 15-78, [PBOA, Volume I, Tab 12]
[16] Ibid, Para
58, citing “Commentaries on the laws of England” (Vol 4, Chapter
21), [PBOA, Volume I, Tab 10]
[17] Ibid,
Para 102.
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