Yee

Acquit Amos Yee, not over-extend scope of law: defence counsel

Yee
Yee

Interest in the trial of 16-year old blogger, Amos Yee, saw some 70 to 80 people turn up at the State Court on Friday. Some had arrived as early as 12 noon to queue up for the limited number of seats.

After a brief first day on Wednesday, where proceedings lasted a mere 20 minutes before the defence requested for an adjournment to study the prosecution’s written submissions, the hearing resumed on Friday at 3pm with oral arguments from both sides.

Amos Yee faces two charges – for posting a video with the “deliberate intention of wounding the religious feelings of Christians in general”; and for posting an image which allegedly contravened Singapore’s laws on obscenity.

A third charge has been stood down by the prosecution for the time being.

The proceedings, presided over by District Judge Jasvendar Kaur, began with arguments from the defence on the obscenity charge.

Assistant Counsel, Ervin Tan, who is from Michael Hwang Chambers and part of the three-lawyer defence team, said the legal test to determine if an image is obscene is whether, when taken as a whole, “it has an effect which is to tend to deprave and corrupt” any person who is exposed to it.

He was addressing the prosecution’s written arguments that the “court should assess whether [the image] had the tendency to corrupt and deprave the minds of the audience”.

Mr Tan said that in order to ascertain this, the court must consider what possible influence the image might have on its likely viewers.

Citing various case law examples, Mr Tan said there is a “high threshold” to cross before something is deemed to be obscene.

He said “it is insufficient that an image shocks or disgusts.”

Mr Tan argued that the phrase “deprave and corrupt” refer to the effect which the allegedly obscene material will have on the mind, including the emotions, of the likely viewers.

These would include feelings of being aroused or excitement.

However, Mr Tan said the prosecution has not provided any evidence of such effect to meet the high threshold in showing that the image has or will “deprave and corrupt”.

He observed that the image in this case was of two deceased persons, albeit famous ones.

Mr Tan said that at most, the effect of the image on its viewers would either “lead them toward being disrespectful or vulgar; or lead them toward sexual experimentation.”

“[But] this does not meet the test of having a tendency to ‘deprave and corrupt’,” he said.

He also argued that Section 292, under which Amos Yee is being charged, “is targeted at peddlers and purveyors of pornography” and “is almost always used against” these two groups of people.

Section 292 is thus “wholly inapt to describe the mischief (if any) in this case,” Mr Tan said.

He then turned to the other issue regarding the charge of obscenity – the audience which is likely to be corrupted by the image.

The prosecution had submitted that this would include the “the average Singaporean on the MRT train with Internet access”, and patrons in the coffeeshops and “younger viewers” who would be “even more vulnerable to the tendency” of the alleged obscene image and post “to deprave and corrupt.”

The Deputy Public Prosecutor (DPP) had also told the court that Amos Yee intended for the image to reach as wide an audience as possible.

Amos Yee’s own comments on his blog showed his intention to corrupt and deprave, the DPP said. The teenager believed that this was the first ever “sexual image of a political leader in Singapore” and he “encouraged” fellow Singaporeans to do as he had done with the image.

Summarising his arguments on what would be considered obscene, the DPP said, “You will know it is obscene when you see it.”

The defence, however, rebutted that a person cannot be convicted ipse dixit (“he, himself, said it”) – that is, a conviction must be based on evidence.

The defence argued that even if young viewers had seen the image, it would not have led to sexual arousal or to promote sexual immorality.

Mr Tan said that at worst the image would cause revulsion, shock, anger or outrage among its viewers.

“This is understandable,” the defence said, because Mr Lee had passed away just under a week before the image was published.

But the image was not a pornographic image, designed to arouse.

“It would be surprising if this Court were to declare that the underlying image, which can be found on a Women’s Health website online, was obscene (with the implication that all such images are also obscene),” the defence said.

“This would be entirely inconsistent with the judicial interpretations of the phrase ‘deprave and corrupt’ as well as Parliamentary intention behind the use of Section 292.”

Mr Tan said it would thus “be remarkable for a Singapore court to find this obscene.”

“The effect which the accused sought was that people would openly criticise and make fun of their political leaders,” the defence said of Amos Yee’s caricature of the two deceased politicians. “There is no evidence that the image has had any more effect than this.”

Amos Yee’s image thus “does not rise to the level of having a tendency to deprave and corrupt within the meaning of Section 292,” the defence said.

Singapore already has “sufficiently broad laws to catch varying types of criminal behaviour” such as the Protection from Harassment Act and defamation laws, it added.

Mr Tan concluded that in light of all of the above, the court should acquit Amos Yee of the charge of transmitting an obscene image.

“An acquittal is not judicial approval,” Mr Tan told the court.

“An acquittal is merely the faithful application of the statutory definition of obscene as Parliament had intended, which various courts have persuasively interpreted.”

Defence counsel said that it would be a “misuse” of Section 292 if the courts “over-extend” its scope to convict Amos Yee.

The defence concluded:

“However legitimate it may be to catch this particular novel form of mischief, it is not for the courts to over-extend the scope of an offence on the basis of mollifying public outrage.

“If this case has indeed exposed a lacuna in our laws, it is for Parliament – not the courts – to enact a relevant offence (say, one of disrespecting the dead).”

Judge Jasvendar Kaur will give her decision on Tuesday.

Read the full submissions by both the prosecution and the defence here.

The Online Citizen’s report on the other charge of Amos Yee “wounding the feelings” of Christians will be published soon.