Assault on The Law – Why Arrest One & Not The Other?

By Gangasudhan

Earlier this week, the Singapore Police Force issued a press release1 informing that four persons had been arrested for affray because it had been “established that the 4 suspects had boarded a public bus and started fighting along Eu Tong Sen Street”. Deputy Assistant Commissioner of Police (DAC) Daniel Tan “also stressed that the police takes a serious view of offences disturbing the peace especially those committed in public amenities posing a threat to safety,” according to the release. This “I will find you and I will arrest you” (think Liam Neeson in the movie Taken) type rhetoric pales in comparison to the way a case in February2 involving two men who were engaged in a fistfight right outside the Subordinate Courts was handled. It apparently took “10 security personnel and police officers” to separate the two men and the only recourse appears to be “to calm them down and send them on their way”.

Understandably, this type of mismatch in how the victims in some cases are told to find their own recourse while in others the Police assert that “no effort will be spared in tracing and getting the offenders to face the full brunt of the law”, leads to the public exclaiming ‘referee kayu’. On many occasions, incidents that are quite identical have resulted in polar opposite outcomes, inviting the allegation in public discourse that there is an inherent bias towards foreigners.

While the system is not meant to be that way, there is – unfortunately – some truth to this assertion.

How It Happens, Not Just What Happened

To understand this phenomenon better, we have to appreciate the way cases unfold. Of course, there must be an incident to begin with – for example, after a drinking session Sylvia punches Shanmugam outside the pub for being a condescending idiot. If the two then have a short scuffle with their friends quickly pulling them apart, the incident ends there and Shanmugam may want to lodge a Police report against Sylvia soon after – in which case, he will be advised to lodge a Magistrate’s Complaint to seek recourse against his assailant. This is basically how the offence of Voluntarily Causing Hurt (or VCH, as it is commonly referred to among Police Officers) as defined under Section 321, Chapter 224 (Penal Code) is disclosed, which is non-seizable, meaning to say perpertrators cannot be arrested by the Police.

Now let’s add the factor that after Sylvia punched Shanmugam and the two get into a scuffle, nearby Police officers on foot patrol come across them before the friends could separate the duo. Does it change the earlier facts of the case? No, but what happens next could change the perception of the situation altogether. For instance, if in a drunken rage, Shanmugam recounts the famous line from the same movie, Taken, “I don’t know who you are, I don’t know what you want… But I will find you, and I will kill you.”, then the incident suddenly turns into Criminal Intimidation (Section 503, Chapter 224), a seizable offence – which would result in Shanmugam being sent to the Police station in handcuffs.

Adding yet another layer, if the entire group of Sylvia and her friends along with Shanmugam and his friends looked like they were in a scuffle with one another (in the eyes of the Police Officers approaching the group) – even though they may have only been trying to get both sides separated, they could have been perceived to be rioting and immediately arrested under Section 146 of the Penal Code (Chapter 224).

Semantics and Optics

While we would like to believe that the law is black and white, often times it is 50 (or more) shades of grey, at best. This is precisely why we end up with two different outcomes for what looks very much like identical circumstances. The Police Officer attending (or the officer in charge of the investigations) often changes the dynamics of the incident itself (in some regard, similar to the ‘observer effect’ in quantum physics). In most cases, this observer effect is unintentional and is based on the experience and assessment of the officer at the scene – but nevertheless can be affected by personal prejudices.

For instance, an officer who is a teetotaler himself will have far less patience with the drunkard boisterousness of a subject than an officer who has practically lived with a father who is a drunkard for the large part of his life. If the officer is unable to calm down a drunk (or worse, ends up provoking him further), then the obvious likely outcome will be the subject saying something or behaving in a way that breaks the law (e.g. accidentally shoving the officer – which would constitute the offence of using criminal force on a public servant according Section 353 of Chapter 224).

Taking a more sinister perspective, it is even possible for a Police Officer to intentionally misread a situation and change the legal circumstances to appear one way or another. In the earlier scenario between Sylvia and Shanmugam, the officer may find Sylvia attractive and therefore deem Shanmugam to have been behaving disorderly in public and arrest him under Section 290 of Chapter 224 (i.e. committing a public nuisance) even though it is clear that Sylvia was the instigator. Similarly, the officer may be overzealous and simply want to remove undesirables from the streets and decide to arrest both Sylvia and Shanmugam for the offence of affray (i.e. disturb the public peace by fighting in a public place) under Section 267A of the Penal Code (Chapter 224).

As can be seen from these hypothetical considerations, that single incident of one person punching another can easily be portrayed, interpreted and defined in a great many ways depending on the officers at the scene and – to a lesser degree – the investigators handling the case and prosecutors managing the charges. This is the reason why cases are handled so differently when the incidents themselves seem pretty much congruent (according to the basic facts). Investigators who follow-up with the case do have some level of discretion and can reclassify cases that do not fall squarely into one particular offence as well – in Shanmugam’s case against Sylvia, it could theoretically take on a different development depending on the way the investigator wants to move forward.

Similarly, extraneous factors too can come to bear on how cases are dealt – for instance, if after lodging the report and being told of the limited option of proceeding to file a Magistrate’s Complaint, Shanmugam decides to call on his well-connected friends in the media to make a mountain out of a molehill, the subsequent public furor could result in instructions from the Attorney General’s Office for the investigator to reclassify the case under a section that is seizable (e.g. from VCH to Voluntarily Causing Grievous Hurt or Criminal Intimidation) and proceed with Police investigations instead.

Change Law or Change Approach

Unfortunately, changing the provisions of the law (e.g. making VCH a seizable offence) may not necessarily change the inadequacies that Singaporeans feel with regard to the disparate outcomes in similar-looking cases. It is also disingenuous to say that more cases will need to be investigated if there is such a change, because many trivial cases are already being investigated due to the enhanced public scrutiny that is omnipresent in today’s modern world.

The only way forward then is for members of the public to arm themselves with knowledge when it comes to the law and how it is applied instead of questioning the outcomes and comparing different cases. When faced with confrontation, do not engage in any way, call for the Police and wait a distance away making sure to (safely) record any utterance or behavior by the perpetrator. Subsequently, when talking to the Police Officers who are attending to the case, always be polite and cooperative. If there was a threat by the other party, make sure to repeat it exactly to the officers (or better still, show the video recording).

At the end of the day, even transparency from the authorities might not help improve how cases are handled, and it could very well be the extent of public outcry which determines if a case is reclassified and investigated by the Police ‘to the full extent of the law’. In the case of affray on Sunday, the perpetrators were traced and apprehended two days later, probably because the incident took place in a public bus. Let’s see if what-looks-like-a-similar-case3 that happened in Pasir Ris (incidentally the day after the incident in Eu Tong Sen Street) where a man travelling on a public bus was repeated assaulted by an unknown person, is handled with the same fervour.