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IN THE HIGH COURT
OF THE REPUBLIC OF SINGAPORE
Between
YAN JUN (...Appellant)
(NRIC No.: S7684361I)
And
PUBLIC PROSECUTOR (...Respondent)
THE APPELLANT'S CASE
1.
This
is the Appellant’s skeletal submission in support of his appeal against the
conviction and sentence passed by the district judge on one charge under
16(2)(a) of the Public Order Act (Cap 257A, 2012 Rev Ed) for taking part in a
public assembly without a permit.
2.
Upon
conviction, the district judge imposed a maximum fine of $5,000 on the
Appellant and meted out a sentence of 50 days’ imprisonment in default of the
fine. After taking into account the 13 days during which the Appellant was
remanded in Changi Prison, the district judge sentenced the Appellant to 37
days’ imprisonment in default of the fine of $5,000.
3.
Now
the Appellant requests the High Court to quash his conviction under section 79
of Penal Code (Cap 224, 2008 Rev. Ed.), or “Nothing is an offence which is done
by any person who is justified by law, or who by reason of a mistake of fact
and not by reason of a mistake of law in good faith believes himself to be
justified by law, in doing it.”
4.
The
law here refers to Article 12 and 14 of the Constitution of Singapore, or equal
protection clause and free speech clause, because these clauses guarantee that
each Singapore citizen has the right to justice. In addition, a citizen’s right
to justice is based on the government’s commitment to the rule of law so the
right to justice is an absolute right. In the present case, the conviction of
the Appellant for unlawful assembly is an apparent miscarriage of justice.
5.
In
accordance with Article 12 and 14 of the Constitution, the police should have
charged the Appellant with contempt of court and defamation if his allegations
of judicial corruption and the Terrex conspiracy were false. The Appellant was
not in a position to apply for a permit because of police corruption, or the
fact that police maliciously rejected the Appellant’s application. Judicial
review is not the correct legal recourse for an applicant to seek after his application
for a permit is maliciously rejected by the police. While mistakes made by
licensing officers who wrongfully exercise their discretionary power can be
corrected by boosting their competence, the court has no power to ensure
licensing officer’s integrity so judicial review is unable to help the court
fulfil its duty to declare invalid exercise of discretionary power by the
licensing officer.
Introduction
6.
The
present case deals with the Appellant’s protest on Nov 23, 2017 at 12 noon at
Raffles Place MRT station, or his 7th protest against judicial
corruption in Singapore and his 3rd protest against PM Lee Hsien
Loong for having knowingly and voluntarily joined the Terrex conspiracy. The
details of the Appellant’s previous 6 protests were reported in the judgements
of Public Prosecutor v. Yan Jun MAC-903277-78 of 2016 and Public Prosecutor v. Yan Jun [2017] SGMC 50.
In this submission, the Appellant only highlights the prohibition order issued by
police Inspector Eddie Thia on Mar 1, 2016, to prove the corruption on the part
of the licensing officer.
7.
On
Feb 25, 2016, the Appellant applied for a permit for his protest outside the
Istana. The police, represented by Inspector Eddie Thia, rejected the
Appellant’s application (PP/20160225/003/G) on Feb 29 on the ground that “the Istana is a prohibited area under the
Public Order (Prohibited Areas) Order 2009”. In response to the Appellant’s
contention that the protest was outside the Istana so the prohibited area
consideration was not applicable, Eddie Thia replied by email on Mar 1 that “staging a protest outside Istana or any
other public places is an offence under the Public Order Act”.
It was self-evident that the police, represented by Inspector Eddie Thia,
prohibited the Appellant from holding protests in public places against
judicial corruption.
8.
Eddie
Thia didn’t respond to Appellant’s 4 other contentions. The 1st
contention was a news report that the police did not treat the Istana as a
prohibited area when they arrested two persons for organizing public assembly
without permit outside (or at the front gate of) the Istana on Apr 4, 2015.
The 2nd contention was that police didn’t specify the exact public
interest matters that they intended to protect when considering the Appellant’s
application. The 3rd contention was that police declined to specify the
boundary of Istana as a prohibited area for demonstrations. The 4th
contention was the fact that the police didn’t adhere to the warning issued by
the Mavis Chionh of the AGC on Nov 30, 2015 and declined to bring contempt
proceedings against the Appellant.
The
Appellant’s position
9.
The
Appellant’s main defence was that he was not in a position to apply for a
permit for his November protest because of police corruption. The police
corruption is clearly shown in Eddie Thia’s decision to maliciously reject the Appellant’s
application and to unconstitutionally prohibit the Appellant from protesting in
public. In addition, there is a large body of evidence to show that Singapore’s
legal system is corrupt.
The
Defendant’s position
10. The Respondent argued that the Appellant’s November
protest had satisfied three elements of taking part in a unlawful assembly, viz., (i) the Appellant carried out a
demonstration by himself against the actions of a person, and group of persons;
(ii) the Appellant demonstrated in a place to which members of the public have
access as of right; (iii) no permit was issued for the public assembly that the
Appellant took part in.
11. For three reasons, the Respondent refuted the Appellant’s
defence. First, the Respondent claimed that Eddie Thia’s email dated March 1,
2016 didn’t contain any prohibition order so the email shouldn’t be cited as evidence
for police corruption. Second, by citing Yap
Keng Ho and others v. PP [2011] 3 SLR 32, the Respondent explained that
wrongful exercise of discretion by the police in considering applications for
permits could not serve as a defence against a charge of unlawful assembly. In
addition, the Respondent highlighted that the Appellant didn’t apply for a
permit at all for his November protest.
12. Third, the Respondent argued that the inconsistency between
the warning issued by the Mavis Chionh and the AGC’s standing policy not to charge
the Appellant with contempt of court cannot be used as evidence of corruption on
the part of the AGC because this inconsistency was irrelevant to the November
protest. Fourth, the Respondent insisted that the Appellant “wishes to use the courtroom as the platform
for further airing his personal agenda”, which justifies the AGC standing
policy not to charge the Appellant with contempt of court and defamation.
The
District Judge’s position
13. The district judge generally agreed with the Respondent’s
arguments. The district judge deliberately changed the Appellant’s defence from
police corruption to police long-standing policy not to grant permits for all
outdoor demonstrations. In the judge’s own words, the Appellant’s defence was
not police corruption but that “he knew
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”.
14. The district judge neither determined the truth or
falsity of the Appellant’s corruption allegations nor touched on the
prohibition order at issue. Unexpectedly, the district judge was of opinion
that the Appellant had “behavioral problems” and advised the Appellant to “seek treatment for his behavioral problem in
order for him to stay out of trouble with the law and for some normalcy to
return to his life”, without explaining how the identification of an
accused person’s behavioral problems is within the experience and knowledge of
a judge.
15. With regard to the Terrex conspiracy, the district
judge expressly stated that it was an “illusion
of some grand conspiracy theory”.
2
issues before the Court
16. Two questions must be answered to determine whether
s79 of the penal code is applicable to the present case. (i) Are the police
corrupt in considering Applicant’s application for a permit so the Appellant is
not in a position to apply for a permit? (ii) Is judicial review the proper legal
recourse for an applicant to seek after his application for a protest permit is
maliciously rejected by the police?
Issue 1: Are the
police corrupt in considering Applicant’s application for a permit?
17. To answer this question, the court must determine whether
Eddie Thia had maliciously rejected the Appellant’s application.
18. The court’s position on a citizen’s right to freedom
of expression is clearly stated in Chee Siok Chin. V
K Rajah J (as he then was) disagreed that the protestor had rights which the
police could not disrupt and explained that the overemphasis of the right to free
speech was the antithesis of the rule of law.
[2] “the overarching issue is what the Constitution of
the Republic of Singapore (1999 Rev Ed) (“the Constitution”) considers
“necessary or expedient” so as to strike a balance between the exercise of
certain individual rights on the one hand and the perceived wider public
interest on the other hand”.
…
[52] The tension between the individual’s right to
speak and/or to assemble freely and the competing interests of security and/or
public order calls into play a delicate balancing exercise involving several
imponderables and factors such as societal values, pluralism, prevailing social
and economic considerations as well as the common good of the community…. [P]ermitting unfettered individual rights
in a process that is value-neutral is not the rule of law. Indeed, that form of governance could be
described as the antithesis of the rule of law – a society premised on
individualism and self-interest.
19. This conclusion is flawed for two reasons. First, the
court unfairly treated a citizen’s interest in the freedom of expression as a
private interest in accordance with one’s personal wishes. In fact, a citizen’s
interest in the freedom of expression is a public interest as well and this
fundamental right is one of basic means through which the general public can
supervise the operation of government. In contrast to the court’s opinion, the
form of governance in which public order is maintained at the expense of
justice could be only be described as the antithesis of the rule of law - a
society premised on authoritarianism. Second, the court exaggerated the value
of the public order. It is self-evident that a government’s primary duty is to do
justice so public order must be maintained in accordance with the law but not
at the expense of justice.
20. In 2008, Law Minister K Shanmugam stated in Parliament that “The Government is absolutely committed to
upholding the presumption of innocence, as a core principle in our
commitment to the Rule of Law. There is no intention to question or qualify
that principle in any way”.
It is evident that restrictions on the right to freedom of expression are not
absolute and must be imposed in accordance with Singapore’s commitment to the rule
of law.
21. In other words, an individual’s right to protest
against the judicial corruption, or his right to justice, cannot be restricted
by Public Order Act if protest is his last resort to get justice. When
considering an application for a permit to hold a protest against judicial corruption,
licensing officers have only two options. One option is to approve the
application; and the other option is to reject the application and to charge
the applicant for contempt of court. In the present case, Eddie Thia ought to charge
the Appellant with contempt of court for posting a YouTube video “judicial
corruption in Singapore”. Unexpectedly, Eddie Thia persistently refused to do
so.
22. Eddie Thai’s response cannot be explained by reason of
“incompetence, inexperience, poor
judgment, lack of professionalism, laziness, reckless, honest mistake,
negligence, or even gross negligence” in Miazga v Kello Estate [2009] 3 S.C.R. 339 at para 80.
His response can only be explained by reason of malice referred to in Pinsky v. Duncan [1996] 79 F.3d 30678 at
para 45 that “malice may be shown by
proving that the prosecution complained of was undertaken from improper or
wrongful motives, or in reckless disregard of the rights of the plaintiff”.
The motive behind his rejection was to halt the spread of the judicial corruption
scandal. Eddie Thia showed a total disregard of the Appellant’s rights provided
in Article 12 and 14 of the Constitution.
23. Now I have conclusively proved that Inspector Eddie
Thia, who represented the police, bore malice towards the Appellant and
prohibited the Appellant from holding public protests in order to halt the
spread of judicial corruption scandal. It is evident that police are persistently
corrupt in considering Appellant’s application so the Appellant is not in a
position to apply for a permit in any way. The other evidence concerning the
corruption on the part of Singapore’s legal system is as follows:
(a)
With
regard to the protest held outside the US embassy, the police failed to justify
the unconditional release of the Appellant on Oct 21, 2016. While the
Prosecution explained that the decision was made on the basis of a February 2017
IMH report,
this explanation doesn’t make sense because this February report was not
available on Oct 21, 2016.
(b)
With
regard to the protest held on Jul 3, 2017, both the police and the AGC failed
to justify the unconditional release of the Appellant’s after the protest.
(c)
With
regard to the protest held on Nov 23, 2017, the police failed to explain why
they arrested the Appellant immediately after the start of the protest but allowed
the Appellant to use the central square as a forum to “air his personal agenda”
for 20 minutes or so during his July protest.
Issue 2: Is judicial review the proper legal recourse for an
applicant to seek after his application for a protest permit is maliciously
rejected by the police?
24. Jasvender Kaur J pointed out in PP v Yan Jun MAC 903277-78 of 2016 at para 36 that:
The High Court has
in a number of decisions made it clear that arguments such as an application
for a licence or permit was wrongly rejected or that the authorities would not
have granted a licence or permit do not provide a defence. If a person were to apply for a licence or permit
and this was rejected, the recourse for persons unsatisfied with such exercise
of discretionary administrative powers is judicial review.
25. In Jeyaretnam
Joshua Benjamin v PP and another appeal [1989] 2 SLR(R) 419, Chan Sek Keong
J (as he then was) held that:
The soundness of the first appellant's submission may
be tested by assuming that the licensing officer wrongfully refused the
licence. What were his legal rights? The court would have quashed the decision
if the appellants had commenced proceedings for judicial review. The licensing
officer would then have to consider the application afresh. If he refused, the
court would have the power to direct him to do so. But, the court would not
have been able to grant a licence to the first appellant or direct the
licensing officer to do so, as the power of court is exercisable by way of
supervisory jurisdiction in these matters. Therefore,
the invalidity of the decision of the licensing officer would result in nothing
more than the appellants' status quo ante the application. They would still
have had no licence when they provided the public entertainment. The law
was that no public entertainment might be provided without a licence under the
Act and except in accordance with the terms of the licence. The law was not
that public entertainment might be provided subject to such restrictions as
might be imposed under the Act. It must
follow that the answers of the licensing officer, whatever they might have
been, could not have provided any defence to the Appellants on the charges
against them.
26. In line with this view, Woo Bih Li J held in Yap Keng Ho and others v PP [2011] 3 SLR
32
at para 14 that:
Even if the rejection of the SDP's application for a
permit to hold the protest rally and the policy prohibiting outdoor political
activities were unconstitutional in the present case, neither the District
Court nor this court would be able to grant the appellants a permit. All that
the District Court and this court could/can do would be to direct the licensing
officer to consider the application afresh. The District Judge was therefore correct to refuse the appellants' line
of questions at trial relating to the constitutionality of the rejection of the
SDP's application for a permit to hold the rally since the constitutionality or
otherwise of this decision was irrelevant to the issue of whether the
appellants ought to have been convicted for having participated in an assembly
and a procession without a valid permit.
27. These judgements are correct as long as the wrongful
rejection of applications is caused by the lack of professional competence but
not questionable integrity on the part of the license officer. While Chan Sek
Keng J explained that the court had power to direct the licensing officer to
consider the application afresh, the outcome of the application would always be
the same because the court has no power to ensure the integrity of the
licensing officer. In a situation when the licensing officer maliciously denies
a citizen his right to justice, which is guaranteed by Article 12 and 14 of the
Constitution, the court must declare that the protest at issue lawful so the
licensing officer’s malicious exercise of discretion can be permanently corrected
before the integrity of the license officer restored. This way the provisions
of the Constitution are observed. [emphasis added]
28. In
Chan Hiang Leng Colin v. Public
Prosecutor [1994] SGHC 207
at para 50, the High Court affirmed that the court has responsibility to
declare void administrative actions and decisions which violate the
Constitution:
[50] The court has the power and duty to ensure that
the provisions of the Constitution are observed. The court also has a duty to
declare invalid any exercise of power, legislative and executive, which exceeds
the limits of the power conferred by the Constitution, or which contravenes any
prohibition which the Constitution provides.
29. If the court refuses to declare the protest
at issue lawful, the court would put the police above the law. This stance is against
the well-established principle that no one is above the law. Chan CJ (as he then was) explained in Law Society of Singapore v Tan Guat Neo
Phyllis [2008] 2 SLR 23983 at para 130 that
[130] Under the law, the Attorney-General must act
according to law, as his prosecutorial power is not unfettered. …First, he may not use his prosecutorial power in
bad faith for an extraneous purpose. Second, he may not use it so as to contravene constitutional rights, such
as the right to equality before the law
and the equal protection of the law”.
30. Now it is safe for the Appellant to conclude
that the judicial review is not a proper legal recourse for the Appellant to take
after Eddie Thia maliciously rejected his application for a permit. As a
result, the appellant’s November protest is justifiable by Article 12 and 14 of
the Constitution.
Conclusion
31. The Appellant request the court to quash his
conviction for unlawful assembly and to grant a judgement of acquittal.
32. On appeal, the Appellant still stands by his
criticisms of Singapore’s legal system and the PAP government. The Appellant is
going to write to international community in February 2018. In Appellant’s
opinion, the legal officer who came up with the idea of the Terrex conspiracy
is Justice Chao Hick Tin, the only legal officer in Singapore who has knowledge
and experience to persuade the head of government into organizing an
international conspiracy to violate the sovereignty of a nation state.
Yan Jun
(Appellant in person)
Filed on the 8th of January 2018
