07 November 2006

On Yap and Friends

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.

Technorati: ; ; .

Backgrounders: Here and here.


Anonymous said...

Its quite interesting to read their accounts

including the one where a police officer claimed that there was no difference between PAP and the government.

I wonder if Dr Chee & gang have any legal background. They seem to know their way about certain court procedures.

Anonymous said...

Maybe Chee and his gang could argue that they are selling and promoting what they are selling.

Just like any saleman who were selling their vaccum cleaner outside a shopping centre.

Anonymous said...

even csj is guilty (which i believe too).. he deserve a fair trial and exercise his right to defend himself...

csj is fast becoming a martyr in the internet community and PAP are finding it very hard to control..

ppl are now viewing him as the only singaporean who dare to speak out openly against the increasingly unjust administration..

mr wang.. for all ur prejustice against csj.. just one qns for u..

where were u when sg court ruled that no one is at fault when a rusty lamp post killed a peasant's kid?

it might seems irrelevant.. but just to highlight that no one in the legal community(with any heart including yourself) has openly voiced any concern then..

Anonymous said...

i see the forest for the trees, but i also see the country where the forest is in.

the law needs change, not the man.

Anonymous said...

It is obvious that there is no legal basis for Judge Eddy to order Yap to take down the video. He is merely trying to intimidate the latter.

Anonymous said...

Extract from transcript:

Police Officer: "Okay, you are conducting a public speech, so uh.... But you are conducting a public speech, so I am checking whether you all have a permit...."
Ghandi: "We are selling our "New Democrat" ... we have a permit to publish and sell.."
Police Officer: "Okay, yeah. You have the permit to publish and sell but your are conducting a public speech."
Ghandi: "Is that so?"
Police Officer: "So, I will like to check whether you all have any permit to do so. That's my new question."
Ghandi:"Where are we doing our..?"
Yap Keng Ho:"We are doing our sales talk. This is promoting the sales. It is not..."

At this rate, very soon Singaporeans have to talk in whispers, in case they are arrested by mata mata for "conducting a public speech".

Anonymous said...

Mr Wang said:

"Now, hands up, those of you who think that Chee in fact didn't make that speech."

Additional measures should be taken, to ensure due process. For all we know, he might not have made the speech. Let me elaborate.

For example, we need to call Industrial Light & Magic to the stand, to provide expert testimony as to whether it was actually Chee, or a simulation created through animatronic special effects. To that end, we should also invite testimony from the Walt Disney World staff, who have experience with animatronics.

Similarly, there are possibilities that quantum fluctuations could have caused Chee to temporarily be replaced with a counterpart from a parallel timeline. It is the duty of the Gahmen to fly out experts such as Stephen Hawking to shed light on this possibility.

The late physicist John Wheeler should also be brought into court to verify that the afterlife (if it exists) is not attempting to influence the matter, preferably via a world-class triumvirate of 12 good spiritual mediums and 1 good ouija board.

While at it, we can get Harry Houdini to testify from beyond the grave, on whether he thinks there is any trickery involved. As the greatest escape artist of the 20th century, he can tell us if anybody is trying to escape accountability, and what art is being used to do so.

Lastly, the new Secretary-General of the United Nations should be called upon to testify, as well as President George W. Bush. Prime Minister John Howard of Australia should also be called as an amicus curiae - his nation has many kangaroos, so he is competent to assess if this is a kangaroo court.

Failure to call upon all these persons and personages, or failure to ensure their presence, will imply bias.

Anonymous said...

If everything that Dr Chee says is ruled irrelevant by the judge and everything that the DPP is OK by the judge, why bother to conduct a hearing?

Anonymous said...

"If everything that Dr Chee says is ruled irrelevant by the judge and everything that the DPP is OK by the judge, why bother to conduct a hearing?"

For show. For 'wayang'.

Nothing will change until the Old Man dies, and 66.6% have the balls and the sanity to choose a political party without the lightning symbol at the ballot box.

Anonymous said...

Sorry, what did Chee say which the judge has ruled irrelevant? I don't see it in the article.

Anonymous said...

Mr Wang said: "Now, hands up, those of you who think that Chee in fact didn't make that speech."

This is really a red herring.

Anonymous said...

Mr Wang,

I'm really surprised that you, a lawyer and former DPP at that, find nothing seriously amiss in the trial amounting to gross injustice. Have you read the Singapore Democrat's account of the trial or are you just reading the Straits Times on this?

Anonymous said...

Okay, lor, there is gross injustice. Chee and friends didn't speak in public on that particular time and date - if they are convicted, surely this is a mistrial and unjust and a conspiracy.