Roses

Roses

Saturday, January 9, 2016

Fielding Police Powers, Plugging Plot Holes

The recently reported decision of Wham Kwok Han Jolavan v Attorney-General[1] has clarified that police warnings are “no more than an expressions of the opinion of the relevant authority that the recipient has committed an offence”.  As such, there is no decision for the Court to quash. 

In his written judgment, the Judge made the following points:

  1. That a warning is not binding on its recipient such that it affects his legal rights, interests or liabilities.[2]
  2. That a recipient is entitled to challenge the warning.[3]
These two statements are puzzling for several reasons.

Warnings do have prejudicial effect on recipients

The fact that someone has received a warning from the police clearly has adverse effects on its recipient. 

Firstly, the opinion of the police carries significant weight.  The Judge in Mr Wham’s case said that a police warning does not and cannot amount to a legally binding pronouncement of guilt or finding of fact.  Only a court of law has the power to make such a pronouncement of guilt or finding of fact.  Saying that a recipient of a police warning is to be presumed innocent until found guilty by a court of law is talking small potatoes compared with the heavyweight pronouncement of guilt bellowing from the Attorney-General’s Chambers.

Secondly, the warning is on record.  How long it will stay on police record before it is considered spent or expired is unclear.  It is also a mystery to what extent other parties (government or non-government) are able to access such information.  Disclosure of a recipient’s police record to other agencies will cause the recipient to suffer privacy intrusion, personal embarrassment and reputational harm. 

If for example, the recipient is applying for a government scholarship or public-sector job, will those who are deciding his scholarship or job application have access to his police record?  If so, then the recipient’s scholarship or job prospects will be affected.

On 11 May 2013, 21 Malaysians were arrested for gathering illegally at Merlion Park. Concerning their fate, the media reported [4]:

"The Police will be issuing conditional warnings to all 21 Malaysians who participated in the illegal gathering at Merlion Park on 11 May. Their employers will be informed of this. The authorities have also initiated the revocation of the work pass of one of these 21 persons for being involved in both the 8 and 11 May illegal gatherings.  In addition, the authorities have cancelled the visit passes of another two of them. As for the remaining 18 persons, their work passes will be reviewed upon completion of further investigations."

Hence, it appears that a non-Singaporean who receives a warning in lieu of prosecution will be at risk of losing his job, of having his work pass revoked, visit passes cancelled or being repatriated. Those are dire consequences for non-Singaporeans who are living and working in Singapore.

Making public announcements of warnings given

There have been many instances where authorities have issued press releases to inform the public that certain individuals have been issued with a police warning in lieu of prosecution.  In some cases, the recipient of the warning is named in the press release while in other cases, the recipient is unnamed. 

A press release by the Singapore Police Force on 10 August 2011 stated that the Police had administered a stern warning to Ms Tin Pei Ling’s unnamed friend for her breach of the Parliamentary Elections Act.[5]

On 23 June 2013, the Attorney-General’s Chambers issued a press release[6] to inform the public that they had issued a letter of warning to Ms Lee Seng Lynn for her having committed contempt of court. 

Has the police an unfettered discretion to decide when they wish to make public the names and circumstances of individuals who have been issued with warnings?  What about the unwanted attention and public humiliation the recipient has to suffer?

When someone’s name enters the public domain on account of having been found guilty of a crime by the Attorney-General, the reputational damage is immeasurable and long-lasting.  How are recipients in such cases going to deal with the court of public opinion against them? Such a recipient pays a heavy personal price even though he has not been convicted by a court of law. 

So even though the Judge in Mr Wham’s case said that a warning is not binding on its recipient such that it affects his legal rights, interests or liabilities, clearly the issuance of a warning can cause permanent and persistent prejudice to the recipient.

Recipients have no remedy against warnings

The Judge in Mr Wham’s case said that the recipient is entitled to challenge the warning. He suggested that Mr Wham could have sent a letter to the police to say that he disputes that he has committed an offence and that the warning is inappropriate.[7]  In fact, Mr Wham did write to the police and also to the Attorney-General’s Chambers to protest the issuance of the warning against him, but the police and the AGC never replied him.[8]

What good will it do for the recipient to write to the police to object the issuance of the warning?

Of what the weight is the recipient’s opinion that he has not committed any offence to warrant the warning compared with the weight of police opinion that the recipient has committed an offence?

In any case, the decision in Mr Wham’s case is that a police warning cannot be quashed by the Court.

All said, I am not sure I understand why the Judge said that the recipient is entitled to challenge the warning because the recipient has no recourse to the Court and in practical terms, there is little he can do at his end to mitigate the adverse effects of receiving a police warning.

How are individuals safeguarded from wrongful issuance of warnings?

The police wield considerable powers over the individual. How the police administers its powers on individuals and what are the safeguards against unprincipled exercise of police powers on individuals are a matters of great importance to the general public.

For when the lone individual is at the receiving end of the strong arm of the law bearing down on him, we need to entrust him to the integrity of the system and to have faith that the machinery will be applied to him in a principled manner. 

If individuals lack adequate protection from and recourses against arbitrary exercise of police powers, the relationship between rulers and the ruled will be strained and eventually the justice system will break down.

Present Situation

In respect of warnings, the following applies for now:

  • Warnings can be given only orally, without the need for any formal document to be issued.
  • The warning may be given without requiring the recipient's consent to being warned.
  • The warning may be given whether or not the recipient's admits to having committed the crime.
  • Once given, a warning cannot be quashed by the Court.
  • The warning is on record, but for how long the record is kept by the police before it is considered spent or expired is not known.
  • When, how and to what extent the police shares the recipient’s record with other agencies is not known.
  • As to what control, if any, the recipient has over what the police does with his record is not known.
  • When announcing to the public the fact that some has received a warning, the police may, as it deems fit, disclose the name of the recipient, the circumstances of the case and any other details.
  • Whether and to what extent the police needs to consider the recipient’s personal detriment arising from the publication of his name is not known.

An unsatisfactory ending

The judgment in Mr Wham’s case is like a story which has a beginning, a middle but no ending.  We are left hanging at the cliff’s edge. 

The Court says that warnings have no legal effects, but warnings are prejudicial to its recipients.  The police is empowered to issue warnings, which the recipient is powerless to do anything about.    

I dearly hope that the decision in Mr Wham’s case is not the Court’s last word on the matter of police warnings.  There is still a lot of plot holes to clear up, you know.  And if the Court is not going to plug the gaps, I am not sure who will.

By Jeannette Chong-Aruldoss



[1]  [2015 SGHC 324] at http://www.singaporelawwatch.sg/slw/attachments/75114/[2015]%20SGHC%20324.pdf
[2] Paragraph 33 of the Judgment
[3] Paragraph 34 of the Judgment
[4] “Singapore revokes passes of 3 Malaysians in illegal protests” by AsiaOne on 15 May 2013 at http://news.asiaone.com/News/Latest+News/Singapore/Story/A1Story20130515-422607.html
[5] http://www.police.gov.sg/mic/2011/08/20110810_update_offences_GE2011.html
[6] https://www.agc.gov.sg/DATA/0/Docs/NewsFiles/AGC%20MEDIA%20STATEMENT_LETTER%20OF%20WARNING%20TO%20LEE%20SENG%20LYNN_14%20June%202013.pdf
[7] Paragraph 34 of the Judgment
[8] Paragraph 7 of the Judgment

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