ST Nov 7, 2006
Court orders transcript, images on Net removed
By Ken Kwek
SINGAPORE Democratic Party (SDP) supporter Yap Keng Ho has posted online a transcript and still images from police video clips showing him and two others allegedly speaking in public without a permit.
He may be held in contempt of court for the act, District Judge Eddy Tham told him yesterday on the eighth day of a trial involving Yap, SDP chief Chee Soon Juan and party member Gandhi Ambalam.
The trio are on trial for speaking in public without a permit.
Last week, they had received DVD copies and a transcript of the video recording, both of which had been submitted as evidence by the prosecution.
Judge Tham told Yap that by posting the information online, he may have illegally made a public comment on the case while it was still sub judice, or before the courts.
He asked Yap to remove the information from the blog and also warned Chee and Yap not to put online the copies of video and transcript they had.
Deputy Public Prosecutor Lee Lit Cheng had earlier objected to Yap's action, saying that it went against the court's ruling that the trio could use the DVDs only to prepare for their defence and 'not for other uses'.
Yap argued that since the original had been screened in open court before the public and media last week, it should also be made available to the public for the sake of transparency.
Chee asked the judge to clarify whether the action was definitely unlawful as he too had been thinking of putting the information online as part of the preparation of his defence.
Judge Tham said he could not make a ruling before hearing arguments from both the prosecution and defence.
The trial continues today.
This is interesting. Firstly I wonder whether the judge actually did order Yap to remove the transcript and images. That's what the ST headline tells us, but the ST article tells a slightly different story.
The actual article merely says that the judge has told Yap that he may be held in contempt for doing such a thing. There is a distinction here, although I think it's one that matters more to lawyers than non-lawyers (like Ken Kwek, the journalist).
Can an accused person (or a witness) post evidence from a court case on the Internet? As a general principle, criminal trials are held in open court. It means that members of the public are free to walk into court to witness the trial.
In other words, anyone could very well have come to court to watch the video as it was being screened there. Since that is the case, it doesn't seem to me to be unfair or harmful for the video to be posted on the Internet.
The video is really just a piece of evidence, just like oral testimony from a witness. A video may show Chee making a speech about XYZ in a public place and several hundred people in the audience". Similarly, a witness may come to court and say, "I saw Chee making a speech about XYZ in a public place and several hundred people in the audience."
After testifying in court, the witness leaves and is generally free to tell the whole world what he said in court (subject to a few limited exceptions). In other words, he's free to transmit his testimony (or evidence) to the whole world. It seems to me that the video should also be similarly transmittable.
In some situations, the court can order certain kinds of evidence not to be made public. For example, the court may order the press not to reveal the name of the victim of a sexual offence. In a counterfeiting case, the court may also order the expert's evidence on how counterfeit currency notes are made or detected to be heard "in camera" - the technical term for prohibiting public disclosure - because we don't want the whole world to learn how to make counterfeit notes.
None of those kinds of exceptions seem to apply in the present case.
Turning to the point about contempt of court. The most common examples of contempt would be:
(a) the person deliberately defying a court order (however, as I had said, the above article is not altogether clear as to whether the court had actually made any order, and if so, what is the basis for such order);
(b) the person being very rude, disrespectful or disruptive in the course of proceedings in court.
There is a third species of contempt of court. It relates to the "publication of material deemed likely to jeopardize a fair trial". Here are some (not all) of the conditions that generally must be met, before we can say that such contempt has occurred:
1. the publication has a real and definite tendency, as a matter of practical reality, to interfere with the due administration of justice in specific legal proceedings,
2. the publication prejudges the issues to be decided in those proceedings;
3. at the time of publication, the relevant legal proceedings were current or pending;
4. the severity of possible prejudice to the administration of justice is not outweighed by the public interest in freedom of discussion of matters of public importance which form the subject of the publication; and
5. the publication is not a fair and accurate report of proceedings in open court.
It seems to me that it will be very difficult in our present case to say that Yap has committed this species of contempt. One reason is that Yap is merely publishing the prosecution's evidence, which the prosecution itself had already adduced in open court.
The fact that the court had allowed such evidence to be admitted, showing that the court considers it to be relevant. The fact that Yap is not publishing his own material, but material that comes from the prosecution, makes it just about impossible to say that the publication unfairly prejudices the prosecution's case.
Those are the technicalities. But as I conclude, I'd still like to remind everyone to take two steps back and not miss the trees for the wood.
The whole point of the video is still to prove that Chee Soon Juan and friends were making a public speech at a particular time and place on a particular date.
Now, hands up, those of you who think that Chee in fact didn't make that speech.