Holding onto my hat

Holding onto my hat
Showing posts with label Jolovan Wham. Show all posts
Showing posts with label Jolovan Wham. Show all posts

Thursday, February 11, 2016

S$6,063 – the price of justice for Jolovan Wham

On 22 December 2015, the High Court handed down a judgment which clarified the legal effects of a police warning.  Wham Kwok Han Jolovan v AG [1] ("Jolovan's case") clarified that police warnings are merely expressions of opinion that the recipients had committed an offence, but do not otherwise have any legal effects on its recipients.

The judgment was the outcome of a Judicial Review application by Jolovan Wham to quash (i.e. void) a police warning administered to him.  As the Court held that there was no decision in the warning administered to Jolovan for the court to quash, the Court dismissed Jolovan's application with costs. 

On 1 February 2016, the High Court ordered Jolovan to pay S$6,063 in costs to the Attorney-General ("AG") for his failed court application. The amount was arrived at after discounting 20% off the amount sought by the AG, to take into account aspects of the process by which the warning was issued.

I am disappointed with the AG for seeking costs against Jolovan and with the Court's decision to order Jolovan to pay S$6,063 in costs to the AG.

Before Jolovan’s Case

The practice of issuing warnings in lieu of prosecution is not a creature of statute or regulated by legislation. Before the decision in Jolovan's case, the implication of receiving a police warning was mired with uncertainty. 

In a seminal article by lawyer Tan Hee Joek "Be Warned of the Stern Warning" published in the Law Gazette in 2013[2], the author said:

"... local cases have shown that a stern warning may still be relevant in judicial proceedings as a criminal antecedent for sentencing and for related civil claims". 

The author cited five reported cases in which the prosecution had brought the accused’s prior warnings to the attention of the sentencing judge.  One of those cases was PP v Tan Hiang Seng[3], which I shall say more about. The author concluded that the five cases showed that police warnings can have adverse effects for the recipients. 

PP v Tan Hiang Seng

Of the five cases cited by Tan Hee Joek in his 2013 article, three of them were referred to by Justice Woo Bih Li, the judge in Jolovan's case. 

Of the three cases, Justice Woo found that in two of them, the court did not actually take into account the previous warnings when sentencing the accused.  But Justice Woo agreed, and AG conceded, that in PP v Tan Hiang Seng, the court certainly did take into account a prior warning to the accused while considering the issue of sentence.  On this point, Justice Woo stated in his judgment that a court is not entitled to treat a warning as an antecedent or as an aggravating factor since it has no legal effect and is not binding on the recipient.

I looked up the case of PP v Tan Hiang Seng. In pressing for a custodial sentence, the prosecution in that case informed the court that the accused had been given a stern warning for taking his mother’s identity card without her permission. The judge in that case said in her grounds for sentencing: 

"... the accused had taken his mother’s identity card without her permission. This was itself an offence of theft. He was given a stern warning by the police for this. I considered this an aggravating factor."

The judge sentenced the accused to 4 weeks' imprisonment and a fine of $2,000.

PP v Tan Hiang Seng is a clear instance where the court when sentencing an accused, had considered the fact that the accused had been warned by the police to be an aggravating factor.

The AG can't run away from PP v Tan Hiang Seng.  Small wonder that in Jolovan's case, Justice Woo noted:

“… the AG submitted that it would be wrong for a court to take into account a prior warning, whether as an antecedent or not, for the purpose of sentencing and he stressed that the prosecution would not in future mention a prior warning to a court for the purpose of enhancing a sentence."

Hence, the AG admitted that the prosecution’s practice of informing the sentencing judge of prior warnings was wrong and that they would stop doing that in future. 

This means that the prosecution in PP v Tan Hiang Seng (and in each of the 4 other cases cited by Tan Jee Joek) erred by telling the court about the accused’s prior warning; and the judge in PP v Tan Hiang Seng erred in considering that factor when sentencing the accused in that case. 

Looks like poor Mr Tan Hiang Seng's sentence was unfairly enhanced. Now that Jolovan’s case has brought those mistakes out in the light, is there justice for Mr Tan Hiang Seng? Would the AG take the initiative to review Mr Tan Hiang Seng's sentencing? To right the wrong, to set the record straight? Or is all that water under the bridge?

S$6,063 to the AG

Mr Tan Hiang Seng's case is long over, but Jolovan's case is still live, as he has now been ordered to pay the AG the sum of S$6,063 for “failing" his court application.

As Tan Hee Joek’s article shows, before Jolovan's case, there were concerns that police warnings could have adverse implications for the recipients.  Given the prevailing legal opinion, we cannot fault Jolovan for being motivated to apply to Court to quash the police warning.  

Apart from uncertainty over the legal implications of police warnings, the circumstances faced by Jolovan make the cost order imposed him seem unfair.

Concerning Jolovan's visit to the police station on 25 March 2015, Justice Woo declared at paragraph 1 of his Judgment that "it was not even clear whether a warning was administered".  Jolovan asked for a copy of the Notice of Warning, but his request was denied. Justice Woo also criticized the wording of the Notice of Warning and called it "poorly drafted".

On 4 May 2015, Jolovan called the police to enquire about the outcome of the investigations against him. The police told Jolovan that a warning had been administered to him on 25 March 2015. When Jolovan tried to engage them further, he was stone-walled. On 9 May 2015, Jolovan wrote to the police and protested the issuance of a warning against him. He did not receive a reply. On 23 May 2015, he wrote to the Attorney-General’s Chambers to similarly protest the issuance of the warning against him.  Again, he did not receive a reply.  Jolovan then went ahead to file his application for judicial review.

Let's step into Jolovan's shoes.  How the police engaged Jolovan - the way he received his warning and how he was subsequently stone-walled - left much to be desired.  In Singapore, we do not have any independent commission or body which can bridge the gap between the police and civilians at the receiving end of police actions.  What else could someone in Jolovan's shoes have done?  Jolovan has no way to protest the issuance to him of the warning.  Jolovan's only recourse was to seek the Court's help by applying for Judicial Review.

Unfortunately, Jolovan has now been penalised with a cost order of S$6,063. The decision to impose the cost order sends the ominous signal that Justice is only available to those who can afford it.  Often, for someone aggrieved by a decision made by a state agency, application to Court for Judicial Review is the only recourse.  If he wants to apply to Court for Judicial Review, he had better make sure he has the requisite financial means to see the application through.  Jolovan's experience shows that applying to court for help carries the risk of having to pay costs to the AG.

Loser Pays

The legal basis for ordering costs against Jolovan is the principle "costs follow the event".  On this principle, the loser has to pay the winner's legal costs.  This principle works well most of the time. But there is a strong case to suspend this principle when the applicant is an aggrieved civilian seeking the Court's help against the heavy hand of state action.  Without protection from adverse cost orders, no one will dare to complain against state action, for fear of being slapped with cost orders in the event that the Court upholds the decision taken by the state agency.

In Jolovan's case, the Court regarded him as having lost his bid, and therefore he has to pay costs to the other side, which in his case, is the AG.  Had the AG decided not to seek a cost order against Jolovan, there will be no issue of costs to decide.  For Jolovan's case, the AG in their wisdom decided to seek costs from Jolovan.  As to why the AG so decided, I do not know, but they did.         

But did Jolovan really "lose"?  Jolovan's application was to quash the warning he received. In the end, the Court decided that since police warnings are not "decisions" but merely opinions, there was nothing to quash. The logic being that the Court cannot quash something which cannot be quashed. 

But wait - if there is nothing to quash, can it be said that Jolovan's application to quash the police warning has failed?  Jolovan’s case is not one in which the Court upheld a decision, but one in which there was no decision to affirm or quash.  But it seems that no decision to quash means that Jolovan’s application has failed and his case is lost.       

Public Interest

While Justice Woo has deemed Jolovan to have "lost" his case, Jolovan has won for the general public a much-needed clarification on the legal effects of police warnings.  Justice Woo razed 20% off the amount sought by AG, to take into account the AG’s various mis-steps.  Justice Woo should have given Jolovan a much higher discount to recognise the public interest elements in Jolovan's case.

The principle that the loser has to pay the winner's legal costs should be suspended for someone in Jolovan's shoes, a civilian who has no other avenue that to seek the court's help for his predicament.  Jolovan’s case is an application for Judicial Review by an individual who is aggrieved by a certain action taken by the police against him. Such cases have a strong element of public interest as they concern the interaction between individual rights and state powers.

In cases where there are strong public interest elements, the civilian applicant should be given protection from adverse cost orders. Such protective measures operate as safeguards against abuse of state powers.  Without protection from costs, aggrieved individuals on the receiving end of state actions, will be inhibited from bringing their grievances to court, for fear of cost implications.   

It should be noted that when an individual contends with the state, it is a David vs Goliath scenario.  The individual is handicapped by the limits of his personal resources. The state has the armada of the AGC to avail of.

Appeal?

Jolovan is entitled to appeal against the S$6,063 cost order.  But I can fully understand if Jolovan decides not to appeal.  For if Jolovan appeals, he risks being slapped with a further cost order in the event that the Court decides to uphold the S$6,063 costs order.  

S$6,063 is already a lot of money for an individual to fork out.  To take on further exposure to legal costs would be daunting.  It will certainly be safer for Jolovan to cough up the dough and be grateful for the clarification given by the court that the warning he received has no legal effect.    

Jolovan’s case is a cautionary tale that Justice comes with a price tag. 

Jeannette Chong-Aruldoss




[1] [2015] SGHC 324 at http://www.singaporelawwatch.sg/slw/attachments/75114/[2015]%20SGHC%20324.pdf
[2] http://www.lawgazette.com.sg/2013-09/843.htm
[3] [2012] SGDC 484

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

Thursday, January 7, 2016

Wham vs AG: Judge glares spotlight on the Police

The recently reported decision of Wham Kwok Han Jolovan v Attorney-General [1]  is intriguing in more ways than one. 

The case has received public attention for its clarification on the legal effects of police warnings – that they are “no more than an expressions of the opinion of the relevant authority that the recipient has committed an offence”. [2]

But the written judgment of this case by Justice Woo Bih Li is also significant for its critique on how the warning was administered to the recipient in the case.  The Judge shone the spotlight on how the police treated the recipient of the warning - and the police did not come up smelling like a rose.

This is a side of the reported decision which not only opens the lid on police processes, but also makes a fascinating story.

It should be noted at the onset that this is not your run-of-the-mill criminal case.  This case concerns an offence which cannot be committed anywhere on the island of Singapore except at Speakers' Corner in Hong Lim Park. The recipient of the police warning in this case was a Singapore citizen who was exercising his constitutional rights.  The context of the case being in the lofty realms of police constraints on civil activity, it adds a special flavour to the story which the Judge unfolds.

Background - what the case is about

On 1 October 2014, Mr Jolovan Wham organised an event at Speakers' Corner. The publicity for event expressly stated that foreigners and permanent residents required a permit in order to participate in the event. At the start of the event, Mr Wham also informed the participants that only Singapore citizens were allowed to participate.

After the event, the Central Police Division (CPD) commenced investigations against Mr Wham as CPD officers had observed that there were participants that appeared to be foreigners. Subsequently, the Attorney-General decided to direct the CPD to issue a warning to Mr Wham to refrain from conduct amounting to an offence under the Public Order (Unrestricted Area) Order 2013 [3] or any other criminal conduct in the future, instead of charging Mr Wham.

On 25 March 2015 at the CPD Headquarters, Mr Wham was verbally warned as directed by the Attorney-General.

Believing that he had done nothing wrong to warrant a warning, Mr Wham applied to Court to challenge the warning given.

Judge unsure whether there was even any warning given

Right at paragraph one of his judgment, the Judge declared it was not even clear whether any warning was given at all.  

The Judge then went on to scrutinise what transpired between DSP Pannirselvam (the CPD Officer) and Mr Wham, which may be summarised as follows:
  1. On 25 March 2015, Mr Wham met the CPD Officer at the CPD Headquarters. 
  2. The CPD Officer administered Mr Wham with an oral warning and then invited Mr Wham to sign a document called "Notice of Warning" to acknowledge that he had received the document. 
  3. Mr Wham refused to sign the Notice of Warning. 
  4. Mr Wham informed the CPD Officer that he wanted to consult his lawyers and requested a copy of the Notice of Warning.  
  5. The CPD Officer refused to give Mr Wham a copy of the Notice of Warning.  
  6. The CPD Officer then made a handwritten note on his paper that "No copies of the warning was issued to him."  
  7. On 4 May 2015, Mr Wham contacted CPD to enquire about the outcome of the investigations against him.  
  8. On 5 May 2015, CPD sent a letter to Mr Wham stating that it had been placed on CPD’s record that Mr Wham was “warned by … DSP S Pannirselvam on 25 March 2015".

The Judge having laid out the sequence of events, it becomes evident to the casual observer that the way the CPD dealt with Mr Wham was ambiguous and inconsistent. 

Did the CPD intend to administer the warning to Mr Wham orally or in written form?

How the CPD intended to administer the warning to Mr Wham was not clear.

Handwritten notes on the Notice of Warning stated
"No copies of the warning was issued to him."
According to the Judge, if it was the intention of CPD was to administer the warning orally, then the wording of the Notice of Warning was inconsistent because it stated "You are hereby warned", and not "you have been warned" and that a stern warning “would be administered”, and not “has been administered”.[4]

The Judge also noted that DSP Pannirselvam's handwritten notes stated "No copies of the warning was issued to him", which seemed to indicate that he was treating the Notice of Warning as the warning itself. [5]

The Judge commented: "If indeed CPD had intended all along for DSP Pannirselvam to administer a warning orally followed by a notice that the oral warning had been administered, then the Notice of Warning was poorly drafted." [6]

The Notice of Warning was poorly drafted in more ways than one.  The Judge pointed out that the Notice of Warning had no date and that it carelessly used the terms “warning” and “stern warning” interchangeably.

The Judge suggested: "However, when the Notice of Warning was not handed to Mr Wham because he had said he wanted to consult a lawyer, there was a problem as to whether a warning had been administered to Mr Wham at all. Perhaps it was because of this problem that the position was then taken by CPD that an oral warning had already been issued."  [7]

Then, there is also the mystery as to why the CPD officer refused Mr Wham’s request for a copy of the Notice of Warning.  On this point, the Judge thought that CPD officer should not have withheld it from Mr Wham. 

The Judge said: "It seems to me that if CPD’s intention was to hand over a copy of the Notice of Warning to Mr Wham after the warning had been administered, then DSP Pannirselvam should have handed over a copy even though Mr Wham chose not to sign the acknowledgement.…… Furthermore, it is not illogical for someone who is informed about a warning of an offence to want to seek legal advice before signing any document pertaining to the warning." [8]

Notably, the Judge vindicated Mr Wham’s wish to consult a lawyer before signing any document.

AGC’s Acknowledgement of Remiss

Clearly, there was needless inconsistency and ambiguity in the way the CPD conducted its proceedings with Mr Wham.

In what appears to be an acknowledgment of their remiss, the Attorney-General’s Chambers told the media: "The Attorney-General’s Chambers and the Singapore Police Force are reviewing the process by which stern warnings are administered and the use of the notice, in the light of the High Court's comments in the judgment." [9]

The Judge’s relentless scrutiny of how the CPD dealt with Mr Wham revealed much to be desired of police processes, at least in the area of administering warnings. 

The Straits Times headlined their report on the Court’s decision as “Activist fails to get police warning quashed”. 

Perhaps in an alternative universe would we see the Straits Times using this as the headline instead: “Judge finds fault with how police warned activist”.  

By Jeannette Chong-Aruldoss



[1] [2015 SGHC 324] at http://www.singaporelawwatch.sg/slw/attachments/75114/[2015]%20SGHC%20324.pdf
[2] Paragraph 34 of the Judgment
[3] Paragraph 4(1)(b) which provides that an organiser of any demonstration held in Speakers’ Corner must not allow any person who is neither a Singapore citizen nor a permanent resident to take part in the demonstration.
[4] Paragraph 10 of the Judgment
[5] Paragraph 12 of the Judgment
[6] Paragraph 16 of the Judgment
[7] Paragraph 14 of the Judgment
[8] Paragraph 18 of the Judgment
[9] The Straits Times “Activist fails to get police warning quashed” (25 December 2015)