Pain scale

By Masked Crusader

There has been public disquiet following some inexplicable court proceedings of late. The highest profile case among these has been that against 16-year-old Amos Yee.

From reports, the prosecution arguments seemed rather weak. In fact, in her 16-page judgment, District Judge Jasvender Kaur rejects various grounds by the defence, but rarely mentions the prosecution’s reasoned arguments which persuaded her to arrive at her decisions. In a successful conviction, it would be prudent to cite the meritorious arguments of the prosecution within the written judgment since the burden of proof is on the prosecution.

Rather than use an objective definition of obscenity to make a ruling, Judge Kaur argues obscenity—like beauty—is in the eye of the beholder.

She states that to determine obscenity in the case of Amos Yee’s crude graphic of the late Lee Kuan Yew and Margaret Thatcher in copulation, one needs to consider Yee’s target audience and the corrupting influence on them.

She infers the target audience to be youth between the ages of 13-19 on the basis of Yee being a teenager though one would think a lawyer making such an assertion in court would immediately have been challenged to provide evidence.

In any case, having determined the target audience, the key she says to arriving at a judgment on whether the graphic is obscene is to consider the views of parents and teachers of this target audience. She does not, however, actually consult any parents or teachers.

Judge Kaur’s describes her thought bubble:

“Would any right-thinking parent approve of their teenage daughters and sons to view such an image? Would any teacher approve of such an image to be viewed by his or her students in the school library?
In my judgment, the answer would be an emphatic ‘no’. It would meet with their strongest possible disapproval and condemnation.”

She does not say if the parent and teacher she had in mind were of a child as young as 13 years old, who would have entered Secondary One, or as old as a 19-year-old who would likely be in tertiary education or national service.

Judge Kaur’s subjective reasoning seems a poor basis for a judgment which could result in a jail sentence for a defendant in a groundbreaking, precedent-setting case.

Many parents abdicate to schools the responsibility of sex education to their children and prefer to hope their children remain naïve about sex till they become 21 and watch R21 films.

Due to the generational divide today, there is such a large gulf between what parents think their kids know about sex and the reality that one could conclude it is the parents who are likely to be depraved and corrupted by learning of what their teenagers know.

Presumably the very same graphic Yee made would not be considered obscene if I were to reproduce it on my blog since I do not write specifically for teenagers and doubt many teenagers would have much interest in my essays.

Perhaps most regrettable is the rather judgmental view Judge Kaur takes of whom she considers to be “right-minded parents” and teachers considered suitable for the profession. They are, of course, parents and teachers who react to Yee’s graphic with the “strongest possible disapproval and condemnation.”

One should not forget that there were those who considered themselves “right-minded parents” who objected vehemently—and unsuccessfully—to the Health Promotion Board’s FAQ on Sexuality, which was drafted following consultation with health professionals and counsellors.

It is arguable Judge Kaur’s inference that the majority of those who saw the crude image on Yee’s blogs were teenagers has merit, even if the prior readership was primarily from that age-group.

By all accounts, the majority of those exposed to the crudity were adults. It appears unlikely that any of the police reports made against Yee were by teenagers. We know the person who assaulted Yee was a 49-year-old man and others who had threatened harm were also adults. The vast majority who saw the crude image and commented at his blog and Facebook also appeared to be over the age of 19—and, therefore, not teenagers.

One hopes that an accused is not going to be sent to jail based on the intuitions of the judiciary.

Judge Kaur was quick to dismiss comparisons the defence presented of a similar image in an online South African Women’s Health Magazine stating:

“What is permitted elsewhere in the world is also irrelevant. I am not concerned with standards in other countries … It is for the court to judge if the image is obscene having regard to our current community’s standards or conscience.”

However, she does cite from cases from other legal jurisdictions such as the UK, Malaysia and India, including from jury trials, which are not part of Singapore’s legal system, that she considers relevant to her deliberations. Many of these cases are from the 1930s to 70s—a bygone era when the state of morality was very different to today.

As Judge Kaur acknowledges that “community’s standards and conscience”—nebulous concepts to begin with—change over time, how does a judge assess objectively what these are at any given time such that the public can be assured that a miscarriage of justice has not occurred due to inaccurate reading of community sensibilities?

Some would argue community sensitivities—changing as they are—should not even be valid considerations to legitimise witch hunts or curbs on free speech given more robust and overarching rights enshrined in the constitution.

Relating to the second charge of intention to wound the feelings of Christians, in a previous post, I had wondered:

“I am no legal eagle but it seems it is not necessary to demonstrate if Christians’ feelings were, in fact, wounded as it appears irrelevant to the charge. Instead, to make the charge stick, does the prosecution have to get into Yee’s head and provide evidence of his state of mind at the time he posted the allegedly offensive material?”

The judge makes the same point, which is why testimony by those who filed police reports was considered irrelevant. The implication is that, in future, complaints may not even be necessary for sedition charges to be made.

The judge adds, “intention, which is a state of mind, can never be proved as fact.” However, despite Yee’s denial that he intended to hurt the feelings of Christians, Kaur still concluded:

“It is not in dispute that the accused spent 2 to 3 days conceptualising, writing, filming and editing the script. I am therefore satisfied that the intent was deliberate.”

Yee had acknowledged that Christians could be hurt by his video in one of his statements. He had apparently also researched the Sedition Act. The judge uses these facts to conclude “the accused’s immediate intent was to denigrate both subjects (Christians and Lee Kuan Yew’s followers).”

Is it not equally plausible to conclude that, as Yee had taken 2 to 3 days to produce his video and researched the Sedition Act, he was in fact being careful and felt that any offence caused by his video would fall short of what would be interpreted as illegal? If so, surely the most Yee can be accused of is miscalculating, which is not the same as intending to wound. The Act, after all is ambiguously worded.

In hospitals, patients who experience trauma are routinely shown a pain chart containing emoticon-like facial expressions illustrating varying degrees of discomfort. This allows medical staff to take appropriate course of actions. How is the law to decide how much hurt segments of the public need to feel before the Sedition Act kicks in?

There are several other points from Kaur’s written judgment which the defence may take encouragement from in considering an appeal. I would like, however, to bring up one final point about the trial which is puzzling.

Following Yee’s convictions, bail was reduced to $10,000 from $30,000 and all previous restrictions were dropped. Why would Yee’s bail conditions be more burdensome when he was still innocent of the charges and less of a flight risk than when he is guilty? Why was he placed in remand and shackled in court during the trial if the prosecutor now makes the following statements:

“It is clear that neither a sentence of a fine nor a term of imprisonment would be suitable in the circumstances.
At 16, 17-years old, I don’t think one should be holding the odium of a conviction.
What he urgently needs is counselling and appropriate probation.
It is not in our interest to keep him in remand.”

The absence of logical responses and clarifications could lead to increased speculation as to the judgment and the inconsistent actions of the prosecution in the case of Amos Yee. There has already been much comment regarding the trial and outcome.

This and other recent precedent-setting cases such as the successful use of the Protection From Harassment Act against The Online Citizen and Dr Ting Choon Ming could lead the public to feel that the judiciary is more concerned with protecting the interests of the Government and the People’s Action Party than the public interest.

The perception of impartiality of the judiciary is critical particularly in a system in which the Government is responsible for the appointment of judges and the Attorney-General and the PAP’s hegemonic control of all aspects of governance in Singapore. The failure to convince the public of the institution’s independence could prove detrimental to the confidence the public has in the judiciary.

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