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The High Court today dismissed both appeals made by civil rights activist Jolovan Wham against his conviction for organising a public assembly without a permit and for refusing to sign a police statement.
In a written judgement on Fri (25 Oct), Justice Chua Lee Ming rejected Wham’s counsel Eugene Thuraisingam’s argument that the event, titled “Civil Disobedience and Social Movements”, was merely a “discussion” and “sharing of thoughts and experiences about issues relating to civil disobedience”.
Hong Kong Umbrella Movement activist Joshua Wong was made part of the panel of speakers for the event – which took place on 26 Nov 2016 – via a Skype video call.
New Naratif editor-in-chief Kirsten Han and fine artist Seelan Palay were the two other panellists, and were present at the indoor venue.
The judge said that contrary to Thuraisingam’s suggestion that the event was not meant to publicise a cause, the prosecution had demonstrated that Wham intended the event to endorse “the use of civil disobedience to bring about social change”, which falls into the territory of an “assembly”.
“In my view, a discussion would publicise a cause if it defends or advocates a principle, aim or movement to which one is committed,” said Justice Chua.
While the title of the event “was neutral” in itself “and did not necessarily suggest” that the event advocated the use of civil disobedience to bring about social change, Justice Chua reasoned that the description of the event on Facebook demonstrated that it was not “just a neutral academic discussion”.
The judge quoted the description as follows:
Join Joshua Wong, Secretary General of Hong Kong’s Demosisto party as he shares with local activists Seelan Palay and Kirsten Han their thoughts on the role of civil disobedience and democracy in building social movements for progress and change.
Given Wong’s reputation as a well-known activist who advocated the use of civil disobedience in Hong Kong, Justice Chua said that Wham’s act of inviting Wong to the discussion is an indication that Wham had advocated the cause of civil disobedience to bring about social change.
He added that Wong’s act of telling the audience how civil disobedience has been employed in Hong Kong and encouraging the audience to think about using civil disobedience in Singapore “was tantamount to advocating the use of civil disobedience” in Singapore.
Justice Chua also remarked that the event was not considered exempt from the permit requirement – as stipulated in the Public Order (Exempt Assemblies and Processions) Order 2009 – as Wong was not a Singapore citizen.
The judge also quoted a statement by Wham, in which he had reportedly told participants that the Singapore approach to activism is “have a picnic”, as seen in movements such as Pink Dot:
So it seems like the Singapore approach is to have a picnic. Right, if you look at how successful Pink Dot is, right, everyone is happy to go to Pink Dot, wear pink, and party, and you know, eat pink muffins and pink cakes, you know, pink as a show of solidarity. I mean I think it is a great movement, and I say this not to criticize Pink Dot, but it seems like in Singapore there are certain ways in which we do our activism, and we don’t seem to like this very confrontational civil disobedience types of actions. So how do we how do we get there, I think this is the billion-dollar question. [emphasis by Chua J] Step by step, do we do we wait for many Pink Dots to happen and then slowly we transition there, or do we need to have a bunch of individuals come together and really hammer on in the civil disobedience so that we open space in the same way that um, people like Seelan, Dr Chee Soon Juan and all that, did 10 years. This is something for us to think about.
Justice Chua questioned as to why Wham would pose “the billion-dollar question” if he was not advocating that Singapore citizens should move from “picnic”-type activism to “very confrontational civil disobedience types of actions”.
Requirement for signing police statement to ensure accuracy and reliability of statement, witness allowed to make amendments to statement before signing: Justice Chua
Touching on Wham’s refusal to sign the police statement, which is an offence under Section 180 of the Penal Code, Justice Chua rejected Wham’s argument that he was not legally bound to sign his police statement.
Section 22(1) of the Criminal Procedure Code stipulates that a police officer may conduct oral examination of witnesses to an event, and is “legally competent” to require the witness who had given the statement to sign his statement.
The judge reasoned that a witness is required to sign his police statement in order to “safeguard” the “reliability” of the statement.
He added that it is always possible for an individual to make amendments to the contents of his police statement before singing it.
“Being required to sign his statement does not mean that the statement-giver has to sign the statement where he disagrees with its contents. He can amend his statement before signing it,” said Justice Chua.
Police Commissioner’s decision to approve or reject permit application valid, must be obeyed unless quashed by the Court: Justice Chua
Justice Chua also rejected Wham’s submission that Section 16(1)(a) of the POA is in contravention of Article 14 of the Constitution.
Under s.16(1)(a) POA, it is an offence to organise a public assembly whereby no permit has been granted under Section 7 of the same act.
S.7 POA stipulates that the Commissioner of Police may grant a permit, whether conditionally or unconditionally, or refuse to do so on any of the grounds set in s.7(2).
Article 14 of the Constitution pertains to the right of all Singapore citizens to “assemble peacefully and without arms”, subject to certain restrictions deemed “necessary or expedient” to Parliament “in the interest of the security of Singapore” or to public order.
Justice Chua reasoned that Wham’s submission “rests on the assumption that a person who disagrees with the Commissioner’s decision is entitled to disregard and defy it” instead of filing a legal challenge against the decision in court, or to make an appeal to the Minister under s.11 POA.
“The Commissioner’s decision, made pursuant to his exercise of a statutory power, is valid and should be obeyed until and unless it is quashed by the Court,” the judge said.
He added that allowing a person organising a public assembly to “ignore and defy” the Commissioner’s decision encourages “vigilante conduct” and implies permission to “take the law into his own hands”.
“Article 93 of the Constitution vests judicial power in the Courts. It is for the Court, and the Court alone, to decide whether the Commissioner’s decision is invalid,” Justice Chua stressed.
The judge also rejected Wham’s submission also that the Commissioner and/or Minister “may act in bad faith and disregard the Court’s decision”, stating that such a matter is “wholly speculative and unsubstantiated”.
Citing Ramalingam Ravinthran v Attorney-General [2012], Justice Chua also stated that high officials of State – in this case the Minister in question – “should be accorded a presumption of legality or regularity”.
He opined that there is “a stronger case” in assuming that high officials of State “will act in accordance with the law”.
High Court disallows prosecution’s application for higher bail
Wham was advised by Police three days prior to the indoor event to apply for a permit. However, Wham did not do so, and was charged with organising a public assembly without a permit and with refusing to sign a police statement after the event.
Wham was later sentenced to a fine of S$3,200 on 3 Jan this year.
Giving a breakdown of the sentence, District Judge Kessler Soh said that Wham was to be sentenced to a S$2,000 fine or 10 days’ imprisonment for illegally organising a public assembly without a police permit, and a S$1,200 fine or 6 days’ imprisonment for not signing a police statement.
A bail of S$8,000 was also set by the judge.
Wham subsequently decided to appeal against his conviction, and also opted for the default imprisonment instead of paying a fine.
Civil society group Function 8 director Teo Soh Lung said on Fri that “the delivering of the judgement against conviction and sentence was over in 10 mins”.
Despite the High Court’s dismissal of both of Wham’s appeals, Teo said that the Court had “disallowed” the prosecution’s application for a higher bail amount to S$15,000 “on the grounds that appeal has now been dismissed”.
“Rightly, defence counsel replied that Jolovan is not a flight risk and he has attended court faithfully.
“The prosecution application was disallowed,” she said, adding that the Court’s denial of the prosecution’s application was a “small victory” for Wham.
Wham’s counsel Thuraisingam said that his client intends to bring the case further to the Court of Appeal to determine questions of law on the grounds of public interest.