Wham vs AG: Judge glares spotlight on the Police

By Jeannette Chong-AruldossThe recently reported decision of Wham Kwok Han Jolavan v Attorney-General [1]  is intriguing in more ways than one.The case has received public attention for its clarification on the legal effects of police warnings – that they are “no more than an expressions of the opinion of the relevant authority that the recipient has committed an offence”. [2]But the written judgment of this case by Justice Woo Bih Li is also significant for its critique on how the warning was administered to the recipient in the case.  The Judge shone the spotlight on how the police treated the recipient of the warning - and the police did not come up smelling like a rose.This is a side of the reported decision which not only opens the lid on police processes, but also makes a fascinating story.It should be noted at the onset that this is not your run-of-the-mill criminal case.  This case concerns an offence which cannot be committed anywhere on the island of Singapore except at Speakers' Corner in Hong Lim Park. The recipient of the police warning in this case, was a Singapore citizen who was exercising his constitutional rights.  The context of the case being in the lofty realms of police constraints on civil activity, it adds a special flavour to the story which the Judge unfolds.Background - what the case is aboutOn 1 October 2014, Mr Jolavan Wham organised an event at Speakers' Corner. The publicity for event expressly stated that foreigners and permanent residents required a permit in order to participate in the event. At the start of the event, Mr Wham also informed the participants that only Singapore citizens were allowed to participate.After the event, the Central Police Division (CPD) commenced investigations against Mr Wham as CPD officers had observed that there were participants that appeared to be foreigners. Subsequently, the Attorney-General decided to direct the CPD to issue a warning to Mr Wham to refrain from conduct amounting to an offence under the Public Order (Unrestricted Area) Order 2013 [3] or any other criminal conduct in the future, instead of charging Mr Wham.On 25 March 2015 at the CPD Headquarters, Mr Wham was verbally warned as directed by the Attorney-General.Believing that he had done nothing wrong to warrant a warning, Mr Wham applied to Court to challenge the warning given.Judge unsure whether there was even any warning givenRight at paragraph one of his judgment, the Judge declared it was not even clear whether any warning was given at all.  The Judge then went on to scrutinise what transpired between DSP Pannirselvam (the CPD Officer) and Mr Wham, which may be summarised as follows:

1. On 25 March 2015, Mr Wham met the CPD Officer at the CPD Headquarters.

1. The CPD Officer administered Mr Wham with an oral warning and then invited Mr Wham to sign a document called "Notice of Warning" to acknowledge that he had received the document.

1. Mr Wham refused to sign the Notice of Warning.

1. Mr Wham informed the CPD Officer that he wanted to consult his lawyers and requested a copy of the Notice of Warning.

1. The CPD Officer refused to give Mr Wham a copy of the Notice of Warning.

1. The CPD Officer then made a handwritten note on his paper that "No copies of the warning was issued to him."

1. On 4 May 2015, Mr Wham contacted CPD to enquire about the outcome of the investigations against him.

1. On 5 May 2015, CPD sent a letter to Mr Wham stating that it had been placed on CPD’s record that Mr Wham was “warned by … DSP S Pannirselvam on 25 March 2015".

The Judge having laid out the sequence of events, it becomes evident to the casual observer that the way the CPD dealt with Mr Wham was ambiguous and inconsistent.Did the CPD intend to administer the warning to Mr Wham orally or in written form?How the CPD intended to administer the warning to Mr Wham was not clear.According to the Judge, if it was the intention of CPD was to administer the warning orally, then the wording of the Notice of Warning was inconsistent because it stated "You are hereby warned", and not "you have been warned" and that a stern warning “would be administered”, and not “has been administered”.[4]  The Judge also noted that DSP Pannirselvam's handwritten notes stated "No copies of the warning was issued to him", which seemed to indicate that he was treating the Notice of Warning as the warning itself. [5]The Judge commented: "If indeed CPD had intended all along for DSP Pannirselvam to administer a warning orally followed by a notice that the oral warning had been administered, then the Notice of Warning was poorly drafted." [6]The Notice of Warning was poorly drafted in more ways than one.  The Judge pointed out that the Notice of Warning had no date and that it carelessly used the terms “warning” and “stern warning” interchangeably.The Judge suggested: "However, when the Notice of Warning was not handed to Mr Wham because he had said he wanted to consult a lawyer, there was a problem as to whether a warning had been administered to Mr Wham at all. Perhaps it was because of this problem that the position was then taken by CPD that an oral warning had already been issued."  [7]

 Then, there is also the mystery as to why the CPD officer refused Mr Wham’s request for a copy of the Notice of Warning.  On this point, the Judge thought that CPD officer should not have withheld it from Mr Wham.The Judge said: "It seems to me that if CPD’s intention was to hand over a copy of the Notice of Warning to Mr Wham after the warning had been administered, then DSP Pannirselvam should have handed over a copy even though Mr Wham chose not to sign the acknowledgement.…… Furthermore, it is not illogical for someone who is informed about a warning of an offence to want to seek legal advice before signing any document pertaining to the warning." [8]Notably, the Judge vindicated Mr Wham’s wish to consult a lawyer before signing any document.AGC’s Acknowledgement of RemissClearly, there was needless inconsistency and ambiguity in the way the CPD conducted its proceedings with Mr Wham.In what appears to be an acknowledgment of their remiss, the Attorney-General’s Chambers told the media: "The Attorney-General’s Chambers and the Singapore Police Force are reviewing the process by which stern warnings are administered and the use of the notice, in the light of the High Court's comments in the judgment." [9]The Judge’s relentless scrutiny of how the CPD dealt with Mr Wham revealed much to be desired of police processes, at least in the area of administering warnings.The Straits Times headlined their report on the Court’s decision as “Activist fails to get police warning quashed”. Perhaps in an alternative universe would we see the Straits Times using this as the headline instead: “Judge finds fault with how police warned activist”.

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 [1] [2015 SGHC 324] at http://www.singaporelawwatch.sg/slw/attachments/75114/[2015]%20SGHC%20324.pdf[2] Paragraph 34 of the Judgment[3] Paragraph 4(1)(b) which provides that an organiser of any demonstration held in Speakers’ Corner must not allow any person who is neither a Singapore citizen nor a permanent resident to take part in the demonstration.[4] Paragraph 10 of the Judgment[5] Paragraph 12 of the Judgment[6] Paragraph 16 of the Judgment[7] Paragraph 14 of the Judgment[8] Paragraph 18 of the Judgment[9] The Straits Times “Activist fails to get police warning quashed” (25 December 2015)