22 September 2005

More on the Seditious Bloggers

Not that much happened yesterday. I reproduce brief excerpts of the ST article:
Sept 22, 2005
Court hearing looms for charged bloggers

TWO young men charged with making seditious and inflammatory remarks about Muslims on the Internet will find out next week when they have to face a judge.


At the Subordinate Courts yesterday, the pre-trial conference was set for next Tuesday, when a date for the hearing will be decided.


Lim's lawyer, Ms Helen Chia, told reporters that she would try to get the charges reduced.
This means that Ms Helen Chia will write what is known as a "letter of representation" to the Attorney-General's Chambers. In this letter, Ms Helen Chia will write nice, sympathetic things about her clients. Common examples of what is often mentioned in such letters are the accused person's regret and remorse; his fine work record and studies; his voluntary services to society; the number of people in his family who depend on his financial support; how he has promised never to commit such offences ever again, etc.

Next, Ms Helen Chia will propose that in light of all the above circumstances, the DPP should amend the sedition charge to a lesser one.

This is the interesting part. Firstly, there is no obvious "lesser charge" to the sedition act. What do I mean by this? Some other types of offences come in different grades - for example, in the Penal Code, there is "voluntarily causing hurt"; and "voluntarily causing grievous hurt". So if a person has committed VCGH but his lawyer can point to sufficiently mitigating circumstances, the DPP may well reduce the charge to VCH, which attracts a lesser sentence.

For the Sedition Act, however, there is no obvious "lesser" charge. There isn't even any obvious "greater" charge. As far as I can see, there is really no other obviously appropriate law in Singapore, which more correctly reflects the key aspects of the dastardly deed than the Sedition Act.

So it will take some creativity and a lot of persuasive skill for Ms Helen Chia to convince the DPP that there is any possible lesser charge to proceed on. Let's take a look at some possible candidates:

1. Maintenance of Religious Harmony Act: Proceeding under this Act will fail to capture the racial aspects of the present case. Anyway, as I also previously mentioned, the MRHA is like the Internal Security Act in that it has nothing to do with the DPP and the courts. It is the Minister who holds the key powers under the MRHA.

2. Section 298, Penal Code. "Whoever, with deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both."

Again this reflects the religious aspects of the offence, but fails to reflect the racial aspects of the offence. The provision is also very old and not quite tailored to cope with situations where the offensive words are in written form. It is more about spoken words - see the phrase "... utters any words ...". The offence probably cannot be proven under this provision, unless the judge is prepared to take a very liberal interpretation. And the DPP probably would not want to take that risk.

3. Section 505(b), possibly (c), of the Penal Code. 505. "Whoever makes, publishes or circulates any statement, rumour or report —


(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquillity; or

(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community of persons,

shall be punished with imprisonment which may extend to 2 years, or with fine, or with both.

Exception to Section 505.
It does not amount to an offence within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it without any such intent as aforesaid."

This is quite similar to the sedition offence in some ways and is the best bet for a "reduced" charge. However, I think that certain aspects of the wording may make this offence more difficult to prove in law. Also I wonder whether there is any real benefit for the accused. This is because I do not really expect the accused persons, if convicted, would receive sentences anywhere close to 2 years imprisonment. Thus it doesn't really matter, in terms of the actual punishment received, whether the proceedings are under section 505 of the Penal Code, or the Sedition Act.

If anyone can think of any other alternative provisions under which the DPP may proceed against the accused persons, let me know ...


xenoboysg said...

505 looks like the only bet. I doubt that arguing for a reduced charge will work, would have been factored in the pre-charge process. For the accused, already signals defeat before the Judge.

For the accused, difference between up to 3 years (maybe 3 -- 6 months) and up to 2 years (maybe 3 -- 6 weeks) probably means something.

singaporean said...

Can the lawyer ask the judge to throw the case out entirely because of inconsistent and selective enforcement? After all, harimau.org and sammyboy coffeeshop is filled with racist slurs for years, with absolutely no sign of enforcement being carried out. Why did the DPP single out the three?

Gilbert Koh aka Mr Wang said...

Hi Xeno,

This whole matter about reducing charges is part of the plea bargaining process. In other words, the idea is that if the prosecution reduces the charge, then the accused will plead guilty instead of claiming trial. Something like what you see in the out-of-court scenes from TV shows like "The Practice".

Hi Singaporean, nope, the judge cannot do that. Under the Constitution, the PP is the one who has the power to decide which are the cases he wants to institute criminal proceedings. The court cannot question this power. On the other hand, if enforcement is inconsistent, it may not be solely or at all due to the PP's decisions. PP cannot decide to enforce any case unless the case is first brought to his attention by the police. Whether or not the police investigate a particular matter is not within the PP's control. In turn, many technically illegal matters will not receive police attention unless a member of the public lodges a complaint to initiate the process. So perhaps you can lodge a complaint against harimau.org and sammyboy and see what happens next.