High Court · Decided 7 December 2005

Chee Siok Chin and Others v Minister for Home Affairs and Another

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[2005] SGHC 216Case no. OM 39/2005, SIC 5162/2005

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V K Rajah J:
[1] In these proceedings, several interesting procedural and substantive issues have been raised. These issues converge in the following circumstances. The applicants seek declarations to vindicate their alleged constitutional rights of assembly and freedom of speech. The respondents on the other hand in addition to raising threshold procedural objections, also allege that the proceedings ought to be struck out on the basis that they are vexatious, frivolous and/or an abuse of process.
[2] The issues raised include:
(a) the circumstances in which a civil court can hear a matter which has a close nexus to a pending criminal investigation;
(b) whether groups of four or less persons have an absolute legal immunity to act with impunity in assembling and expressing their views;
(c) the discretionary powers available to the police in dealing with persons suspected of offending salient provisions of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“MOA”); and
(d) the circumstances in which the exercise of a statutory discretion and/or power by the police can be reviewed.
In the ultimate analysis, the overarching issue is what the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”) considers “necessary or expedient” so as to strike a balance between the exercise of certain individual rights on the one hand and the perceived wider public interest on the other hand. In this context, do the applicants have a legitimate legal grievance?
[3] While the real legal issues fall within a fairly narrow compass, both for the sake of completeness and out of deference to counsel’s industry, I shall address all the points raised, including the ambit of the constitutional right of assembly.
[4] Given that some of the issues raised are both complex and involved, it may be helpful at this juncture to outline the structure of the judgment. I address the various issues raised in the following schematic arrangement:
(a) Factual matrix [6] – [16]
(b) The procedural irregularities [17] – [27]
(i) Inappropriate originating process [17] – [20]
(ii) Wrong parties sued [21] – [27]
(c) Principles governing striking out [28] – [38]
(i) Frivolous or vexatious [37]
(ii) Abuse of process [38]
(d) Application of striking-out principles to the present case [39] – [40]
(e) Constitutionality of the MOA [41] – [56]
(f) A vignette of the rival contentions [57] – [59]
(g) Overview of the MOA [60] – [92]
(i) Relevant provisions of the MOA [63] – [87]
(ii) The power of arrest under the MOA [88] – [92]
(h) Reviewing the exercise of police powers [93] – [106]
(i) Analysis of the applicants’ substantive case [107] – [129]
(i) The preliminary issues [108] – [115]
(ii) The principal controversy [116] – [129]
(j) Conclusion [130] – [139]
[5] As there are broad and apparent similarities between some of the applicable statutory provisions and corresponding legislation in other jurisdictions, I take the liberty, from time to time, of adopting a comparative approach in examining the legal position. I also explain why some of the more recent English decisions on public order issues exert neither persuasive nor logical force given that they both reflect and apply legal and political considerations that do not and cannot extend to Singapore. It is evident that the infiltration of European law into English law has significantly reshaped English legal contours in this particular area.
Factual matrix
[6] The applicants are self-professed political activists. The respondents are the Minister for Home Affairs and the Commissioner of Police. In these proceedings, commenced by way of an originating motion filed on 30 September 2005, the applicants seek the following declarations:
[7] On 7 October 2005, the Attorney-General (“AG”), on behalf of the respondents, filed a summons in chambers application to strike out the entire proceedings on the basis that the proceedings are irregular, scandalous, frivolous or vexatious and/or that they are an abuse of the process of court. The AG has, however, not filed any affidavit disputing the applicants’ affidavit of alleged facts. Instead, he has filed an affidavit exhibiting downloads from the website of a political party, the Singapore Democratic Party (“SDP”) and contends that the downloads incontrovertibly demonstrate that these proceedings constitute political theatre engineered and stage-managed by the SDP and the applicants.
[8] The proceedings arise as a consequence of an incident involving the three applicants and another fellow traveller on 11 August 2005. On that day, at about 12.30pm, the applicants held what they describe as a “peaceful protest” at the walkway leading to the Central Provident Fund Building (“CPF Building”) at Robinson Road. Each of them wore white T-shirts inscribed with various words in red both on the front and back.
[9] Chee Siok Chin (“Chee”) and Yap Keng Ho (“Yap”) wore T-shirts with the words “National Reserves” and “HDB GIC” inscribed on either side. N Gogelavany (“Gogelavany”) and Tan Teck Wee (“Tan”) wore T-shirts with the words “Be Transparent Now” and “NKF CPF” inscribed on either side. Tan, however, is not a participant in these proceedings. In this judgment I shall hereinafter collectively and interchangeably refer to the applicants and Tan as “the protestors”.
[10] The protestors stood in a row along the walkway. Yap held up a placard which read “Singaporeans spend on HDB; whole earnings on CPF; life savings – but cannot withdraw when they need” above his head. Tan held up a transparency sheet with the word “Accountability” written in Chinese.
[11] Soon after, a number of journalists congregated around the protestors and posed queries. Gogelavany and Chee responded. Gogelavany also handed out copies of a press statement they had prepared, the contents of which, however, have not been adduced in the applicants’ affidavit. After fielding the press queries, the protestors remained on the walkway. At approximately 1.00pm they turned to face the CPF Building with their backs to the main road.
[12] At about 1.15pm, several police cars and riot police vans arrived at the scene. Riot police armed with shields, batons and helmets then positioned themselves a few feet away from the protestors. In addition, about 20 uniformed policemen and women observed the “silent protest”.
[13] A senior police officer, Deputy Superintendent Dominic J Baptist (“DSP Baptist”) subsequently approached the protestors and attempted to ascertain who was “in charge”. They replied “we all [are]”. DSP Baptist then told them that they were to disperse immediately. The protestors questioned the basis for the dispersal request. DSP Baptist responded that he had received a telephone call complaining that they were creating a public nuisance. The protestors persisted, seeking the legal basis for the dispersal order. DSP Baptist stated that the offence was one of public nuisance under the MOA. The protestors allege that DSP Baptist also asserted that the “gathering constituted a [seizable] offence and that [they] could be arrested”. DSP Baptist sought further clarification, asking the protestors if they were connected to certain “booksellers” selling books nearby. They replied in the negative, assuring DSP Baptist that they would leave the scene in a few minutes. DSP Baptist walked away. About a minute later the protestors walked to the back of the CPF Building where they removed their T-shirts. The police then approached them, requesting for their identity cards. Having recorded the protestors’ particulars, the police asked the protestors to hand over their T-shirts and placards for “purposes of investigation”. When one of them enquired whether the items would be returned, an officer replied “maybe”. The protestors duly handed the items to the police and left. It is undisputed that no force was used in the course of the incident. Nor was there any suggestion of any potential violence that might lead to a breach of peace.
[14] The AG contends that the application is procedurally irregular as the mode of commencement adopted by the applicants, namely by way of an originating motion, is incorrect; it is further contended that whenever a declaration is sought, the proceedings ought to be commenced by way of either a writ or originating summons. Furthermore, in the light of s 19(3) of the Government Proceedings Act (Cap 121, 1985 Rev Ed) (“GPA”) it is the AG and not the present respondents who should have been properly named as the respondent.
[15] Mr Jeffrey Chan, on behalf of the AG, accepts however that these irregularities can be cured and should not inexorably result in the striking out of the entire proceedings. That concession apart, he maintains that there is absolutely no merit in the substance of the proceedings and therefore invites the court to strike out the entire proceedings. In support of his application to strike out the entire proceedings, he contends that the alleged complaints against the police conduct during the incident which form the crux of the applicants’ case are legally unsustainable and doomed to failure. He robustly contends that the applicants have no cause to complain about the police in relation to the incident; the police were factually and legally both entitled and empowered to ask the protestors to leave the scene as well as to seize the T-shirts.
[16] Mr M Ravi, on behalf of the second and third applicants, takes an ambivalent position apropos the procedural irregularities. While he does not accept that the AG’s points are well founded, he nevertheless vigorously contends that the proceedings cannot and ought not to be struck out in limine. He asserts that a matter of great constitutional importance is raised by the present proceedings. Surely, he argues, Art 14 of the Constitution allows “peaceful protests”; the applicants were merely exercising their constitutional rights on 11 August 2005.
The procedural irregularities
Inappropriate originating process
[17] The applicants seek declarations that the respondents had acted in an unlawful and/or “unconstitutional manner” in ordering the applicants to disperse during their protest and in seizing the items. In England, under its original civil procedural regime, applications for a declaratory judgment could be commenced by (a) writ, (b) originating summons, or (c) by way of an application for judicial review: see Zamir, Woolf & Woolf, The Declaratory Judgment (Sweet & Maxwell, 2nd Ed, 1993) at para 7.03. However, in Singapore, where different governing civil procedure rules prevail, it is now plainly established that a declaration cannot be obtained by way of an application for judicial review, as the remedies for such an application are limited to the prerogative orders: Re Dow Jones Publishing (Asia) Inc’s Application [1988] SLR 481. The AG rightly points out that, if anything, the proper procedure for the applicants to adopt is to seek a declaration to commence proceedings either by way of a writ or originating summons: see the Court of Appeal decision in Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR 609.
[18] The applicants’ present application by way of originating motion is inherently incorrect and inappropriate. Pursuant to O 5 r 5 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“RSC”), the originating motion procedure shall be used only if the RSC or any other written law expressly requires or authorises that such a procedure be employed to initiate proceedings. That is not the case here. The High Court decision of Jigarlal Kantilal Doshi v Damayanti Kantilal Doshi [1998] 1 SLR 211 (“Jigarlal’s case”) at [21] appears to suggest that commencing proceedings by originating motion, where they are not required or authorised to be so begun by the RSC or by any written law, is a sufficiently fundamental irregularity to warrant striking out if an application is made at a sufficiently early stage of the proceedings.
[19] That said, it must also be readily acknowledged that such an irregularity is by no means a fatal defect. Order 2 r 1(3) of the RSC stipulates that the court shall not wholly set aside any proceedings solely on the ground that the proceedings were required by any of the rules to be begun by an originating process other than the one actually employed. The court may allow appropriate amendments to be made and make an appropriate order dealing with the proceedings and/or remedial steps as it thinks fit: O 2 r 1(2) of the RSC. I note that the court in Jigarlal's case omitted unfortunately to consider O 2 r 1(3) of the RSC.
[20] Pursuant to O 28 r 8 of the RSC, the court may, in a case begun by originating summons, direct that the proceedings continue as if the case had been begun by writ. Although there is no express provision in the RSC that confers a similar power on the court to convert an action begun by originating motion into an action begun by writ or originating summons, there appears to be no good reason why the court should not assess such an error with some latitude and rectify the position under its wide discretionary powers conferred by O 2 r 1(2) of the RSC. The court rules are designed essentially to facilitate workflow and not to impede legitimate legal grievances. They are the vassals and vessels and not the masters of substantive justice. In the instant case, given that there are no apparent substantial factual controversies, the proper course of action would be to direct that the proceedings continue as if they had begun by an originating summons, assuming that the proceedings are not fundamentally and irremediably flawed on other more substantive grounds.
Wrong parties sued
[21] The applicants have named as respondents the Minister for Home Affairs and the Commissioner of Police in their official capacity. This is purportedly on the basis that these two persons have legal supervision of the relevant police officers. Mr Chan asserts that this is another patent irregularity as the proper party to name as the respondent is the AG himself.
[22] Section 19(3) of the GPA stipulates:
[23] Pursuant to s 19(1) of the GPA, the Minister shall from time to time publish in the Gazette a list of Government departments that have been specifically authorised for the purposes of this Act. No such list has thus far been published. As a consequence, all civil proceedings against the Government and/or public office holders have to be commenced against the AG pursuant to s 19(3) of the GPA. The applicants should indeed have named the AG as the respondent.
[24] There appears to be no provision in either the GPA or under O 73 of the RSC (which deals with proceedings against the Government) that spells out the consequences of the present transgression. In my view, guidance can be gleaned from O 15 r 6 of the RSC. This Rule addresses instances of any misjoinder or nonjoinder of parties. It emphasises that no cause or matter shall be nullified solely on account of such an irregularity. The court has the residual discretion and power to rectify the position by directing the correct party to be added or substituted as a party to the action.
[25] The present misjoinder (of the Minister for Home Affairs and Commissioner of Police) as well as the non-joinder (of the AG) is in my view an entirely curable procedural irregularity. The substantive dispute or grievance that the applicants seek to resolve is plainly directed against the Government. The irregularity in question arises principally as a consequence of the peculiarities relating to proceedings against government organs, office holders or departments which require the AG to be named as the party. This, on closer scrutiny, is quite unlike the primary situations contemplated by O 15 r 6 of the RSC, where a named or joined party could be completely unrelated to the proceedings. Accordingly, if the misjoinder or non-joinder of such parties is not sufficient to vitiate proceedings, the applicants’ failure to name the AG as the party to this application should not a fortiori irrevocably impede or impair the prosecution of the applicants’ grievance.
[26] In the result, consequential directions can also be given to substitute the AG as the respondent. Section 19 of the GPA is essentially a facilitative provision that ensures that the names and addresses of the persons acting for these authorised departments are published and made known to the public. It is not intended to create a procedural hedgehog throwing up prickly issues as to the propriety of initiating proceedings against any state organs, governmental departments or public servants discharging official duties. The clear legislative policy is that if there is any uncertainty as to which government department to sue, the action should be instituted against the AG, as the legal representative of the Government.
[27] I therefore determine that this irregularity can be cured by the appropriate substitution of the AG as the respondent. The legislative intent behind s 19 of the GPA is not to impose an inflexible mandatory rule that nullifies all procedural transgressions.
Principles governing striking out
[28] Pursuant to O 18 r 19 of the RSC, an application for a striking-out order can be based on any of the following four grounds:
(a) it discloses no reasonable cause of action or defence;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of process of the court.
[29] In addition, the court also retains a residual and inherent jurisdiction to strike out an action and/or pleadings on the basis that the proceedings are frivolous, vexatious or an abuse of the process of the court: see para 18/19/16 of Singapore Civil Procedure 2003 (Sweet & Maxwell Asia, 2003). The existence of this jurisdiction is statutorily acknowledged by and embedded within O 92 r 4 of the RSC.
[30] In what is widely regarded as the most authoritative exposition of the basis and extent of the court’s inherent jurisdiction, Sir Jack I H Jacob in his celebrated article, “The Inherent Jurisdiction of the Court” (1970) 23 CLP 23 explained that such a jurisdiction is not derived from any statute or rule of law but from the very nature of the court as a superior court of law. The juridical basis of the court’s inherent jurisdiction lies in its authority to uphold, protect and fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner. The inherent jurisdiction of a court is defined by Sir Jack Jacob at 51 as “the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them”. It is a broad, virile and necessary jurisdiction and performs the quintessential function of justice where the court dispenses procedural justice as a means of achieving substantive justice between the parties.
[31] To instil a certain degree of order and structure into this seemingly amorphous concept, it is helpful to adopt the classification by Sir Jack Jacob of the cases in which the inherent jurisdiction can be exercised. Excluding cases of contempt, he divided all other cases into three categories, namely (a) control over process, (b) control over persons, and (c) control over powers of inferior courts and tribunals. With regard to control over process, the court exerts its control through the exercise of coercive powers as well as regulatory powers. Such control over process ought to be further subdivided into (i) regulating process and proceedings, (ii) addressing abuse of process and (iii) compelling observance of process. For present purposes, it will largely suffice to consider the category of abuse of process.
[32] Sir Jack Jacob described an abuse of process at 40–41 in the following terms:
[33] Proceedings are frivolous when they are deemed to waste the court’s time, and are determined to be incapable of legally sustainable and reasoned argument. Proceedings are vexatious when they are shown to be without foundation and/or where they cannot possibly succeed and/or where an action is brought only for annoyance or to gain some fanciful advantage.
[34] The instances of abuse of process can therefore be systematically classified into four categories, viz:
(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.
[35] The essence and basis of this inherent jurisdiction is largely mirrored in O 18 rr 19(1)(b) and 19(1)(d) of the RSC. Order 18 r 19 of the RSC however literally applies only to writ actions, originating summonses and petitions. The sub-rule itself makes no express reference to actions begun by originating motion. Given however that the present proceedings ought properly to have been initiated by way of an originating summons or writ, the present striking-out application can therefore be justified either pursuant to the express terms of O 18 of the RSC and/or the court’s inherent jurisdiction. All said and done, the result of most applications would almost invariably be the same given that the juridicial basis of both jurisdictions largely overlap with and are consistent with each other.
[36] It would be helpful at this juncture to recapitulate as well as to summarise certain broad principles which are applied and enforced by the court when it contemplates a striking-out order, whether on the basis of O 18 rr 19(1)(b) and 19(1)(d) of the RSC or pursuant to its own inherent jurisdiction. It is only in “plain and obvious” cases that the power to strike out should be exercised: Gabriel Peter & Partners v Wee Chong Jin [1998] 1 SLR 374 at [18]; The Osprey [2000] 1 SLR 281 at [6]. A bona fide litigant will not be prevented from pursuing a remedy unless the substance of the claim is plainly and unquestionably unsustainable. This summary procedure is not meant to be used as a ploy to avoid embarrassing proceedings and/or to evade debatable facts and/or legal arguments. The court must be convinced that the proceedings are bound to fail when it grants such a radical peremptory remedy.
Frivolous or vexatious
[37] These words have been judicially interpreted to mean “obviously unsustainable”: Attorney-General of the Duchy of Lancaster v London and North Western Railway Company [1892] 3 Ch 274 at 277. In Goh Koon Suan v Heng Gek Kiau [1990] SLR 1251 at 1257, [15], Yong Pung How CJ opined that an action would be vexatious “when the party bringing it is not acting bona fide, and merely wishes to annoy or embarrass his opponent, or when it is not calculated to lead to any practical result”. It has also been suggested that “frivolous” and “vexatious” connote purposelessness in relation to the process or a lack of seriousness or truth and a lack of bona fides: see Jeffrey Pinsler, Singapore Court Practice 2005 (LexisNexis, 2005) at para 18/19/12, p 482.
Abuse of process
[38] This is the widest general ground for striking out. Needless to say, there is, by its very definition, an inevitable overlap with the other grounds. As Yong CJ succinctly emphasised in Goh Koon Suan v Heng Gek Kiau at 1257, [15], abuse of process characterises a proceeding which is “wanting in bona fides and is frivolous, vexatious or oppressive”. The Court of Appeal in Gabriel Peter & Partners v Wee Chong Jin ([36] supra) at [22] broadly outlined what amounts to an abuse of process:
Application of striking-out principles to the present case
[39] The applicants’ claim cannot be permanently impeded purely on the basis that they seek only a declaratory judgment; see O 15 r 16 of the RSC. Mr Chan accepts this but nonetheless insists that because no substantial or consequential relief is sought by the applicants, the court ought to be extremely cautious in granting a mere declaration in relation to the alleged rights. I disagree. If indeed the police acted improperly or unlawfully in relation to the incident, it can indeed be persuasively contended that there is in point of fact substantial relief sought by the applicants; namely, the vindication of the applicants’ alleged constitutional rights of freedom of expression and/or freedom of assembly. Moreover, the applicants argue that their right to hold future peaceful protests could depend on the outcome of the court’s ruling. It cannot be argued, as Mr Chan does, that the relief sought is per se wholly impractical or unsustainable. Mr Chan further contends that the application has been initiated purely for political theatre. Perhaps. Be that as it may, should any litigant regardless of his political inclination genuinely seek the court’s assistance in vindicating or determining a legitimate grievance, the court has a duty to assess such a grievance and accord proper and serious consideration in determining whether relief should be granted. It will not suffice to broadly label and lightly brush aside a complaint on the basis that there is a collateral motivation or purpose in initiating proceedings, if indeed veritable legal rights have been improperly curtailed or removed.
[40] To succeed in striking out the instant proceedings, the AG has to show that the claim is frivolous or vexatious because it is obviously unsustainable and/or an abuse of the process of court with absolutely no prospect of success in the event of a full hearing. It must be shown with clarity and certainty that the police had the power to intervene in the protest and duly seize the T-shirts. There should be no basis or latitude for arguing that such a power was arbitrarily exercised and in any manner susceptible to judicial scrutiny. A court should only strike out a claim “when it is manifest that there is an answer immediately destructive of whatever claim to relief is made”: Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 at 408.
Constitutionality of the MOA
[41] As the applicants tirelessly assert that their constitutional rights in relation to free speech and assembly have been infringed, it is not only appropriate but necessary when assessing the striking out application, that the subtext of this argument be immediately, fairly and squarely addressed. This arises in the context of the police having characterised their conduct as a “public nuisance” offending the MOA. Can the provisions of the MOA restrict or curtail Art 14 rights as declared in the Constitution?
[42] The right to freedom of speech and expression and the right to assemble peaceably without arms are rooted in Art 14 of the Constitution. These fundamental rights are however not absolute and are circumscribed by limits clearly articulated in Art 14(2) of the Constitution. The article stipulates:
In short, Parliament may by law impose restrictions on the rights of freedom of speech and expression and assembly if it considers such restrictions necessary or expedient in the interest of (a) the security of Singapore, or (b) public order.
[43] Legislation in Singapore restricting the right to freedom of assembly includes, inter alia:
(a) s 141 of the Penal Code (Cap 224, 1985 Rev Ed) (“PC”) which creates the offence of unlawful assembly;
(b) s 268 of the PC which makes public nuisance an offence;
(c) the Public Entertainments and Meetings Act (Cap 257, 2001 Rev Ed) which regulates the licensing of public entertainment – including lectures and talks in public places;
(d) the MOA; and
(e) the Public Order (Preservation) Act (Cap 258, 1985 Rev Ed) (“POPA”) which allows the police to disperse assemblies in gazetted areas in the interest of public order.
Section 5 of the POPA empowers the Minister to make rules regulating assemblies and processions in public places and to place limits on the right to assemble freely.
[44] The threshold for legitimacy in relation to any legislative fetter of rights as spelt out in Art 14(2) of the Constitution is whether the curtailment is “necessary or expedient”, inter alia, in the interest of security or public order.
[45] The Indian Constitution, on the other hand, relates and subjects the right to fetter the freedom of speech and of assembly to the touchstone of reasonableness. Article 19(3) of the Indian Constitution states:
[46] In the Indian context, it would therefore appear that there is a two-stage test to decide if a restriction on the right to freedom of assembly is valid: one has to consider first of all whether the restriction is reasonable, and secondly, whether it is for a purpose specified under Art 19(3) of the Indian Constitution (see M P Jain, Indian Constitutional Law (Wadhwa and Company Nagpur, 5th Ed, 2003) at p 982). The Indian courts therefore have the power to declare a law restricting the constitutional right of assembly invalid on the ground that it does not create and/or form a reasonable restriction.
[47] However, even with such a constitutional imprimatur of review, the Indian courts have exercised considerable self-restraint in the actual exercise of such a power, given that “a Court is not a second or revising Chamber from the decision of the Legislature and that it is only in the clearest case that a Court will declare a law invalid”: H M Seervai, Constitutional Law of India (N M Tripathi Private Ltd, 3rd Ed, 1983)vol 1 at p 482. In similar vein, Sastri CJ in the leading Indian case of State of Madras v V G Row [1952] SCR 597 at 607 said:
[48] This constitutes a clear acknowledgement of the need for judicial self-restraint and extreme caution when seeking to determine whether a particular piece of legislation is invalid on the ground that it is an unreasonable restriction of a constitutional right – even under the altogether different constitutional scheme in India, where the court is vested with wider powers of review. I have taken the liberty of referring to the Indian position to illustrate the point that even with the wider constitutional restraints imposed by the Indian Constitution, the Indian courts have been most reluctant to exercise their jurisdiction to strike down legislation for purportedly flouting the right of assembly or freedom of speech.
[49] It bears emphasis that the phrase “necessary or expedient” confers on Parliament an extremely wide discretionary power and remit that permits a multifarious and multifaceted approach towards achieving any of the purposes specified in Art 14(2) of the Constitution. In contrast to the Indian Constitution, there can be no questioning of whether the legislation is “reasonable”. The court’s sole task, when a constitutional challenge is advanced, is to ascertain whether an impugned law is within the purview of any of the permissible restrictions. The touchstone of constitutionality in Singapore in relation to the curtailment of a right stipulated by Art 14 of the Constitution is whether the impugned legislation can be fairly considered “necessary or expedient” for any of the purposes specified in Art 14(2) of the Constitution. All that needs to be established is a nexus between the object of the impugned law and one of the permissible subjects stipulated in Art 14(2) of the Constitution. In relation to any restriction impugned for unconstitutionality on this test, the Government must satisfy the court that there is a factual basis on which Parliament has considered it “necessary or expedient” to do so: Halsbury’s Laws of Singapore vol 1 (Butterworths Asia, 1999) at para 10.180. Evidence of whether the restrictions are to be considered “in the interest” of any of the stated purposes may be, inter alia, gleaned from the impugned Act, relevant parliamentary material as well as contemporary speeches and documents. A generous and not a pedantic interpretation should be adopted; see also s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”) and Constitutional Reference No 1 of 1995 [1995] 2 SLR 201. The presumption of legislative constitutionality will not be lightly displaced.
[50] It is also crucial to note that the legislative power to circumscribe the rights conferred by Art 14 of the Constitution is, inter alia, delineated by what is “in the interest of public order” and not confined to “the maintenance of public order”. This is a much wider legislative remit that allows Parliament to take a prophylactic approach in the maintenance of public order. This necessarily will include laws that are not purely designed or crafted for the immediate or direct maintenance of public order, according to Mahendra P Singh, V N Shukla’s Constitution of India (Eastern Book Company, 9th Ed, 1996) at p 113:
[51] There is nothing irregular, arbitrary, or unusual about Parliament’s right to limit the right of assembly or freedom of speech. The genealogy of Art 14 of the Constitution can be traced back to the Report of the Federation of Malaya Constitutional Commission 1957 (G A Smith, 1957) (at para 162) where it was recommended “that freedom of speech and expression should be guaranteed to all citizens subject to restrictions in the interests of security, public order or morality or in relation to incitement, defamation or contempt of court” [emphasis added].
[52] This approach has also in one form or the other been adopted time and again in several other jurisdictions. The tension between the individual’s right to speak and/or to assemble freely and the competing interests of security and/or public order calls into play a delicate balancing exercise involving several imponderables and factors such as societal values, pluralism, prevailing social and economic considerations as well as the common good of the community. Consideration of such public policy is exceedingly complex and multifaceted. While the clarion call for unfettered individual rights is almost irresistibly seductive, it cannot, however, be gainsaid that individual rights do not exist in a vacuum. Permitting unfettered individual rights in a process that is value-neutral is not the rule of law. Indeed, that form of governance could be described as the antithesis of the rule of law – a society premised on individualism and self-interest.
[53] The right of assembly can never be absolute and may be subordinated to public convenience and good order for the protection of the general welfare whenever it is “necessary or expedient”. From time to time, for the common welfare and good, individual interests have to be subordinated to the wider community’s interests. There is also nothing inherently wrong or unreasonable in requiring permission from the relevant authorities to be sought prior to the holding of a public meeting or assembly. This can be viewed as a facilitative arrangement.
[54] The nub of the matter is that Arts 14(1)(a) and 14(1)(b) of the Constitution do not confer absolute or immutable rights. The rights conferred by these Articles can be restricted in the wider interests of, inter alia, the public order so that they do not impinge on or affect the rights of others. The framework of the Constitution deems it crucial and necessary to authorise the imposition of restrictions in the wider and larger interests of the community and country.
[55] Returning to the MOA, it is evident from its short title that the Act was enacted for the purpose of ensuring good order in, inter alia, public places. The long title of the MOA now states: “An Act relating to offences against public order, nuisance and property” [emphasis added]. The relevant Parliamentary debates as well as the content and purport of the MOA place beyond any doubt that the MOA has as an objective the upholding of public order.
[56] Parliament has therefore considered and has intended through the MOA to impose restrictions on the freedom of speech and/or assembly that are “necessary or expedient” to ensure public order in certain situations. Accordingly, in my view, there can be no challenge as such to the constitutionality of the MOA.
A vignette of the rival contentions
[57] I invited Mr Ravi to clarify whether his “constitutional argument” embraced a challenge to the legitimacy of the MOA, any of its provisions and/or any other existing legislative positions that purport to regulate the freedom of speech and/or assembly. He then clarified that this was not the thrust of his case. His case was confined to the alleged “arbitrary” exercise of police powers. As I understand it, Mr Ravi now contends only that the police had exceeded their powers in dealing with the applicants. He does not seek to establish that any provision of the MOA contravenes the Constitution. The main thrust of his case is that Art 14(1) of the Constitution, read with s 5 of the MOA (which only regulates the assembly of five or more persons), expressly permits four or any smaller group of persons to conduct any form of “peaceful” protest that does not or will not result in a breach of peace or public disorder.
[58] Mr Chan, on the other hand, takes the position that the incident itself was not justiciable. He argues that firstly, there was no substantive matter that was justiciable. Secondly, the police were still investigating the matter. He further argues that the police were legally empowered to act in the manner they did. He maintains that the police cannot be criticised for taking the steps they took during the incident. He contends that unless it can be said that no reasonable police officer would or could have acted in like manner, the applicants have absolutely no cause for complaint. For good measure, Mr Chan also adds that it appears from the applicants’ affidavit that they voluntarily left the scene and were not legally coerced into surrendering their T-shirts.
[59] It would be helpful to examine the relevant provisions of the MOA and the other applicable and/or relevant statutory provisions before assessing the merits of the parties’ respective contentions. Sections 13A, 13B and 40 of the MOA take centre stage in these proceedings. Mr Chan primarily relies on ss 13A and 13B of the MOA in asserting why public order offences of nuisance were “in the view” of DSP Baptist apparently committed by the protestors. Section 40 of the MOA empowers a police officer to arrest, without a warrant, a person offending the provisions of the MOA. The legislative history of the MOA and the subject provisions are relevant.
Overview of the MOA
[60] The MOA came into force on 9 June 1989, when the Minor Offences Act (Cap 184, 1985 Rev Ed) was amended and renamed. Most of the provisions within the MOA relating to assemblies and processions mirror earlier provisions enacted in the Minor Offences Act. The principal changes incorporated were the enhancement of penalties for organisers of any illegal assemblies or processions and the creation of a new offence embracing persons who did not organise but who participated in illegal assemblies or processions. The increasing number of illegal processions in the late 1980s provided the impetus for these legislative reforms. In moving the second reading of the Minor Offences (Amendment) Bill (see Singapore Parliamentary Debates, Official Report (16 February 1989) vol 52 at col 689), the then Senior Minister of State for Home Affairs Dr Lee Boon Yang explained the rationale underlining the new regulations relating to assemblies and processions:
[61] The next series of changes made to the MOA were effected in 1996. Three new offences were created; the most relevant for the present purposes being the new offence of using indecent, threatening, abusive or insulting words or behaviour, thereby causing fear, harassment, alarm or distress to another person. This had also been broadly encapsulated in s 13(f) of the Minor Offences Act. It bears mention however that s 13(f) of the Minor Offences Act was contravened only if the person using abusive language or behaviour intended to provoke a breach of the peace or if a breach of peace was likely to be occasioned. That sub-section only addressed conduct likely to lead to violence or public disorder that in turn could or did result in a breach of peace. It can be gleaned from the ministerial statement made during the second reading of the Amendment Bill (see Singapore Parliamentary Debates, Official Report (27 February 1996) vol 65 at col 697), that this was considered an unsatisfactory position because it would be relatively difficult to prove a breach of peace under s 13(f) of the Minor Offences Act. It was an ineffective instrument of public control, not equipped to address nuisances that harassed, alarmed or insulted without the threat of actual or potential violence. This legislative concern was the impetus for ss 13A, B, C and D of the MOA. Under the present scheme:
(a) s 13A deals with intentionally causing harassment, alarm or distress;
(b) s 13B deals with conduct likely to cause harassment, alarm or distress;
(c) s 13C deals with intentionally causing fear or provoking violence; and
(d) s 13D deals with threatening, abusing or insulting a public servant.
[62] Sections 13A and 13B of the MOA draw substantial inspiration from and are largely modelled on ss 4A and 5 of the English Public Order Act 1986 (c 64) (“1986 POA”); they were both designed, and professed, to extend the ambit of the pre-existing corpus of public order offences while also widening the net to criminalising acts of nuisance and inappropriate behaviour. It is of moment to note that the subject sections concurrently afford safeguards for the right of assembly and/or free speech by expressly providing for the defence of “reasonable conduct”.
Relevant provisions of the MOA
[63] For the purposes of the present proceedings, the immediately relevant provisions of the MOA are ss 13A, 13B and 40. For easy reference, they are now reproduced:
For completeness, I should also add that s 2 of the IA defines a “person” to “include any company or association or body of persons, corporate or unincorporate”, unless “there is something in the subject or context inconsistent with such construction or unless it is [in the legislation] otherwise expressly provided”. There is nothing in the MOA that would indicate that “any person” (at the receiving end) should not include a corporate entity. While the words “harassment”, “alarm” and “distress” can arguably be said to relate to personal feelings, which a corporate entity cannot suffer or entertain, it ought to be emphasised that such bodies are also run in reality by persons.
[64] An entity, corporate or otherwise, does not have feelings. “A company as a legal entity, cannot suffer tension, harassment and suffering” (see Sanray Export Services Ltd v National Westminster Bank Plc [1997] EWCA Civ 1981). Granting that it cannot be injured in its feelings, an entity can suffer injury through the loss of standing and/or goodwill: Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 at 262. However, allegations against a corporation will often involve by necessary inference imputations against those who are responsible for its direction and control. In many recent cases, actions have been brought both by the company concerned and by one or more of its directors: Duncan and Neill on Defamation (Butterworths, 2nd Ed, 1983) at para 9.08, and see, for example, Rubber Improvement Ltd v Daily Telegraph Ltd (company and chairman); Broadway Approvals Ltd v Odhams Press Ltd (No 2) [1965] 1 WLR 805 (company and managing director); Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 (company and directors); S and K Holdings Ltd v Throgmorton Publications Ltd [1972] 1 WLR 1036 (company and five directors); London Computer Operators Training Ltd v British Broadcasting Corporation [1973] 1 WLR 424 (company and two directors); Fraser & Neave Ltd v Aberdeen Asset Management Asia Ltd [2002] 4 SLR 473; Icadam Technologies Sdn Bhd v CAD-IT Consultants (Asia) Pte Ltd [2005] SGHC 130. The directors are entitled to claim damages for injury to their feelings, a head of damage which is not available to the corporation or company itself. Gatley on Libel and Slander (Sweet & Maxwell, 10th Ed, 2004) at para 7.13 neatly sums up the position through the following illustrations:
[65] Directors and other officers of a corporate entity are frequently referred to as the controlling minds and directing will of a corporate entity. Any allegations of impropriety or words of insult against the corporate entity must more often than not also directly impinge on the integrity and competence of the directors and officers, who are in truth the persons being targeted even if no explicit reference is made to them. It follows that insults or abuse directed at a body can create feelings of distress, harassment or alarm amongst the directors and officers responsible for it. This ought to apply equally to unincorporated bodies where the individuals who are running the organisation can also similarly be emotionally affected.
[66] Persons who are liable to suffer distress as a consequence of improper acts or comments that are targeted at the entities for which they are responsible must be protected. It would be contrary to both logic and common sense that such individuals are deprived of any protection or redress strictly because of the notion that the corporate form artificially created by the law is incapable of sustaining such injuries. The word “person” as defined in the IA certainly embraces this category of persons.
[67] I am of the view that the offences of nuisance under the MOA can, when directed against a body (corporate or unincorporated), be viewed as constituting harassment and/or causing alarm or distress to those responsible for running that body. As such, offences under ss 13A and 13B can be committed, if not against corporate or incorporated bodies as persons, then certainly against the persons responsible for operating or managing such bodies. This is particularly so when the allegations suggest financial impropriety (see [64] above).
[68] In rounding up, I should also advert to a recent legal development in England in relation to the ability of local government bodies to protect their reputations. In England, the former view that a local government corporation had a “governing” reputation protected by the law of defamation no longer represents English law: Derbyshire County Council v Times Newspapers Ltd [1993] AC 534. The case, however, makes it clear that the decision itself does not affect the right of an individual member or officer of a government body to sue if the statement about the body is capable of being interpreted as referring to the individual. Indeed, the ability of the individual to sue seems to be regarded as a reason for denying such a right to the body: Gatley on Libel and Slander ([64] supra) at para 8.20.
[69] It can be fairly said that this abrupt change of position in England in 1993 is not a development of the common law but rather a change of the law of a legislative rather than a judicial character: see Mahoney JA’s observations in Ballina Shire Council v Ringland (1994) 33 NSWLR 680. In his trenchantly-worded dissenting judgment at 723, Mahoney JA also pointedly observed:
I am by and large in agreement with the views of Mahoney JA and can do no better, at this juncture, than to echo and emphasise the ultimate sentence of the quote. This, however, is not an issue that I need to reach a conclusion on in the instant proceedings.
[70] Coming back to the issues at hand, it bears reiteration that ss 13A and 13B of the MOA evince and encapsulate a legislative policy to address the prickly issue of limiting behaviour and/or the freedom of speech in the general public interest: see Cozens v Brutus [1973] AC 854 at 862. Instructive assistance as to the ambit of ss 13A and 13B of the MOA can be gleaned from Cozens v Brutus per Lord Reid at 862, where he declared:
[71] Nuisance is the Proteus of public order and can assume an infinite variety of forms. The words abusive and/or insulting should not be construed as having either an unusually wide or narrow meaning. A common-sense approach ought to be adopted in applying the statutory test to any given factual matrix. As Lord Reid in Cozens v Brutus at 862 put it:
[72] I respectfully agree with Lord Reid’s observation at 863 that in so far as the interpretation of a similar combination of words in the MOA is concerned, it would be correct to conclude that “Parliament has given no indication that the word is to be given any unusual meaning. Insulting means insulting and nothing else.” [emphasis added]. By the same token, the words “harassment”, “alarm” and “distress” should be given common-sense everyday meanings.
[73] It is necessary at this point to draw attention to a salient and critical difference between s 5 of the English Public Order Act 1936 (c 6) (“POA”) which was scrutinised in Cozens v Brutus and ss 13A and 13B of the MOA. For easy reference, I shall reproduce that English provision:
[74] It is axiomatic that s 5 of the POA only rendered offensive, conduct that was threatening, abusive or insulting behaviour whereby a breach of peace was likely to occasioned. In relation to that section, Viscount Dilhorne in Cozens v Brutus at 865 observed:
[75] In contradistinction to s 5 of the POA, ss 13A and/or 13B of the MOA are not predicated upon a requirement or an intention that the inappropriate behaviour leads to or is likely to lead to a breach of peace or public disorder. Threatened violence is also no longer a pre-requisite to ground a conviction. It is as plain as a pikestaff that Parliament intended through these nuanced provisions to proscribe conduct falling within the statutory ambit regardless of whether those engaging in inappropriate conduct intended that disorder should ensue. Indeed it is amply evident from a plain reading of s 13B of the MOA, in particular, that an intention for the conduct to be “threatening, abusive or insulting” is not even a necessary criterion. Objectivity is the touchstone for assessing the conduct in question.
[76] Simply put, threats, abuses and insults embraced by s 13B of the MOA may constitute a transgression whether or not they were intended to be threats, abuses or insults. Threatening, abusive or insulting words or behaviour are simply words or behaviour that are threatening, abusive or insulting in character: Parkin v Norman [1983] QB 92 at 98. As McCollough J held in Parkin v Norman at 99:
The manifest intent and purpose of the two sections is to promote good order in public places. It is the nature of the conduct and its effect on “any person” that grounds the offence. The emphasis in s 13B of the MOA is manifestly on conduct “likely to [cause] harassment, alarm or distress”. A single person can be found to have infringed either of the two sections. These sections do not merely regulate the conduct of groups or assemblies of persons.
[77] Caution, of course, has to be exercised in the employment of ss 13A and 13B of the MOA. They will often involve issues of acute factual inquiry coupled with the delicate calibration of conduct. Imprecise lines will have to be drawn between boisterous and abusive conduct; between freedom of expression and insulting or abusive conduct; between freedom of assembly and harassment. It cannot be gainsaid that there can be a point where legitimate conduct may cross the Rubicon and become harassment. This will always be a matter of degree and the actual concatenation of circumstances.
[78] I am aware and acknowledge that currently in England, the statutory progenitors of ss 13A and 13B of the MOA, namely ss 4A and 5 of the 1986 POA are sometimes restrictively interpreted. There are a number of reasons for this. Firstly, the legislative scheme dealing with issues of public order has undergone a sea change. For instance, the Protection from Harassment Act 1997 (c 40) (UK), the Crime and Disorder Act 1998 (c 37) (UK) as well as the Human Rights Act 1998 (c 42) are now in force. Secondly, the effect of the European Convention on Human Rights and decisions of the European Court of Justice and European Court of Human Rights have significantly altered English judicial attitudes in this area of the law. Thirdly, some judges have taken a restrictive view of the application of the 1986 POA because of the contents of the White Paper that preceded it. I will deal with the last point first and refer to an English authority that took a pragmatic and robust view of the applicable legislation.
[79] In Chambers v The Director of Public Prosecutions [1995] Crim LR 896, Lexis Nexis CO/3493/1994 (“Chambers’ case”), Keene J pertinently observed:
[80] After considering the White Paper, which prima facie appeared to indicate that s 5 of the 1986 POA was generally intended to apply to instances such as hooligans causing disturbances, groups of youth pestering people waiting to catch public transport or to enter a hall or cinema, or someone turning out the lights in a crowded dance hall thereby causing panic, Keene J declared:
In rounding up his views on the ambit of s 5 of the of the 1986 POA, Keene J expansively concluded:
[81] I wholeheartedly agree. There is no reason whatsoever to read ss 13A and 13B of the MOA restrictively. Parliament could have adopted quite different language if that was the intention (see Singapore Parliamentary Debates, Official Report (27 February 1996) vol 65 at col 697). Returning to Chambers’ case, it ought to be also pointed out that in a concurring judgment, Pill LJ invoked the oft-quoted dictum of Viscount Dilhorne in Cozens v Brutus ([70] supra) at 865:
While it may be faintly argued purely on the basis of the parliamentary debates (which were similar in substance to the Hansard debates) that there is only a narrow protected class contemplated by ss 13A and 13B of the MOA, that would not, in my view, be correct. The word “person” should be read in the light of s 2 of the IA, broadly and not restrictively (see [67] above).
[82] The facts of Chambers’ case itself are instructive. The appellants were demonstrators who persistently prevented a land engineering surveyor from attempting to use a theodolite by blocking its infrared beam with parts of their body or a placard. The central issue was whether such conduct was capable of amounting to disorderly behaviour within the meaning of that term in s 5(1) of the 1986 POA. The protestors submitted that the meaning of disorderly behaviour should be restricted to behaviour which could disrupt public security or peace of which riotous or turbulent behaviour was the best example. They additionally contended that a threat to public peace had to be present. The conviction of the appellants by the Crown Court was upheld by the Divisional Court which agreed that the deliberate and persistent conduct was likely to cause harassment to the surveyor and that it was disorderly.
[83] Mr Ravi drew to my attention a subsequent decision of the English Divisional Court, Hammond v Department of Public Prosecutions [2004] EWHC 69 (Admin) (“Hammond’s case”). He relied extensively on this decision in contending that the protestors had “rights” which the police could not disrupt. I did not find the passages referred to particularly helpful. The decision itself involved the alleged “right” to demonstrate asserted by an evangelical preacher who had a sincere desire to convert others to his way of thinking. He had positioned himself in a public area with a double-sided sign bearing the words “Stop Immorality”, “Stop Homosexuality” and “Stop Lesbianism”. A crowd of 30 to 40 people gathered around him arguing and shouting. Some people in the crowd were angry, others aggressive or distressed; some threw soil at the preacher; one person was hit over the head with the placard. The police asked the preacher to leave. He refused. The police were of the view that the preacher was provoking violence and arrested him. The preacher was convicted under s 5 of the 1986 POA on the basis that his behaviour went beyond legitimate protest, provoked violence and disorder and interfered with the rights of others. His appeal to the Divisional Court was dismissed.
[84] It is obvious that a distinct and decisive legislative and judicial transformation has taken place in England over the last decade, in particular, on the resolution and/or adjudication of public order issues. The significant changes in jurisprudence that occurred after Cozens v Brutus ([70] supra) in 1973 must be underscored and acknowledged before any reliance whatsoever is placed on some of the more recent English decisions on public order issues. May LJ in Hammond’s case observed right at the outset, at [6]:
and later at [11]:
[85] After stressing that s 5 of the 1986 POA has now to be interpreted in a manner that is compatible with “Convention” rights, May LJ went on to explain, at [14], what these were:
[86] It is axiomatic that the terms and tenor of Art 10(2) of the European Convention on Human Rights are very different from Art 14 of the Constitution. In particular, the phrase “necessary in a democratic society” has been interpreted by the European Court of Justice and Court of Human Rights very generously so as to impose common legal precepts and standards within the European Union. This phrase is also the jurisprudential root of the legal concept generally referred to as the “margin of appreciation”. Such a legal doctrine restricts different members of the European Union from straying too widely from perceived common standards in interpreting and applying legislation involving human rights. Practices, standards and rights can only differ within a narrow band of acceptable practices.
[87] Another fundamental difference now existing between English law and Singapore law is the applicability of the notion of proportionality. This is very much a continental European jurisprudential concept imported into English law by virtue of the UK’s treaty obligations. This jurisprudential approach, inter alia, allows a court to examine whether legislative interference with individual rights corresponds with a pressing social need; whether it is proportionate to its legitimate aim and whether the reasons to justify the statutory interference are relevant and sufficient; see Hammond’s case at [27]. In this context, I find the following extract from a leading English treatise (Sir William Wade & Christopher Forsyth, Administrative Law (Oxford University Press, 9th Ed, 2004) at p 366) helpful in illustrating, by way of a thumbnail sketch, the origins of the principle of proportionality in English law:
See also P P Craig, Administrative Law (Sweet & Maxwell, 5th Ed, 2003) at pp 617–638. Proportionality is a more exacting requirement than reasonableness and requires, in some cases, the court to substitute its own judgment for that of the proper authority. Needless to say, the notion of proportionality has never been part of the common law in relation to the judicial review of the exercise of a legislative and/or an administrative power or discretion. Nor has it ever been part of Singapore law.
The power of arrest under the MOA
[88] Section 40 of the MOA first appeared in Ordinance No 13 of 1906, which consolidated and amended the law relating to minor offences. Other than a minor cosmetic modification, s 40 of the MOA retains its original tenor. It confers on a police officer a broad and general power to arrest without warrant “any person offending in his view against any of the provisions of [the] Act” [emphasis added]. In addition “any … article concerning by or for which an offence has been committed may be seized and taken to a … police station”.
[89] The phrase “in his view” appears in a wide variety of legislation and has all the characteristics of an etymological chameleon. It is clearly not a term of art with a fixed meaning. The precise meaning of this phrase depends entirely on the context of the statutory provisions in which it is employed.
[90] The phrase could either refer to (a) an offence committed in the physical proximity of a police officer in question, that is to say, an offence committed “in the presence” of a police officer; or (b) whether a police officer “has reason to believe” an offence has been committed. To illustrate this, a comparison can be made between the way the phrase is employed in s 40 of the MOA and ss 34 and 114 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”).
[91] In s 40 of the MOA, the juxtaposition of the phrase reads “any person offending in his view against any of the provisions of this Act” [emphasis added]. Similarly in s 114 of the CPC, reference is made to an injury to public property which is attempted to be “committed in his [the officer’s] view”. This should be contrasted with the phrase in the context of s 34(1) of the CPC which confers on a private person the right to arrest “any person who, in his view, commits a non-bailable and seizable offence” [emphasis added]. That private person must then hand over, without unnecessary delay the arrested person to the nearest police officer. Section 34(2) of the CPC immediately stipulates that “[i]f there is reason to believe that [the] person” [emphasis added] arrested comes under s 32 of the CPC, a police officer shall arrest him. Clearly if “in his view” meant “reason to believe”, the latter phrase would not have been employed in s 34(2) of the CPC in marked contradistinction. It has been held that “in his view” for the purposes of s 34(1) of the CPC means either “in sight” of the private person (per Choor Singh J in Metro (Golden Mile) Pte Ltd v Chua Wah Liang Paul (oral judgment dated 13 August 1980) noted in Ivy Hwang, “Wrongful Arrest by Private Persons” (1981) 23 Mal LR 182–186), or in a more generous interpretation, to a situation where although a private person does not actually witness the offence, he is in such close proximity that he was certain an offence has been committed (Sam Hong Choy v PP [1999] 4 MLJ 433). While this issue does not sensu stricto arise in the present proceedings it would appear to me that the latter interpretation is more consistent with the intent and policy of s 34 of the CPC.
[92] I have dealt with this phrase at some length as s 40 of the MOA is pivotal in the present proceedings. Mr Ravi, when queried by me, rightly accepted that the phrase “in his view” in s 40 of the MOA refers to “has reason to believe”. As this interpretation is now accepted by both counsel, I will not belabour the point any further except to say that for the purposes of the incident, either interpretation may not really matter as the “protest” was still in progress when DSP Baptist requested the applicants to desist in their conduct.
Reviewing the exercise of police powers
[93] Parliament confers discretions with the sole intention that they should be used to advance legislative policies and objectives. Discretions must only be exercised in accordance with the law. Discretions are never wholly unfettered. The exercise of a statutory executive discretion in Singapore is subject to judicial review unless expressly excluded by statute. The court can intervene in a decision and/or the implementation of a decision on the basis that it is ultra vires the statute and/or where there is illegality, irrationality or procedural impropriety in the manner in which a decision is made or implemented. Judicial review is, however, limited to the decision-making process and does not extend to a review of the merits of the decision itself. Almost invariably, findings of fact are also not within the purview of such a review: Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board [1997] 2 SLR 584, Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644, Chng Suan Tze v Minister of Home Affairs [1988] SLR 132 and Chan Hiang Leng Colin v PP [1994] 3 SLR 662. Reasonableness does not require reasons to be stated: Wade & Forsyth ([87] supra) at p 365.
[94] The term “Wednesbury unreasonableness” is a shorthand legal reference to the classical judicial approach expounded in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”) per Lord Greene MR, at 229:
In short, the basis of the quashing of a decision is that it is so outrageously defiant of “logic” and “propriety” that it can be plainly seen that no reasonable person would or could come to that decision.
[95] Reasonableness in arriving at a determination does not, however, mean that there should be a single inevitable approach or determination in any given matter. The essence of reasonableness is that decision makers can in good faith arrive at quite different decisions based on the same facts: there is an inherent measure of latitude in assessing reasonableness. Lord Hailsham of St Marylebone LC in In re W (An Infant) [1971] AC 682 at 700 sagely observed that two reasonable persons could quite “perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable”. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064, Lord Diplock said:
[96] The exercise of the power of arrest inexorably carries with it a latent tension between the constitutional right of liberty and the countervailing public interest in crime prevention and control as well as the maintenance of public order. In short, a balance between the liberty of a person and the need to uphold law and order has to be struck. Parliament has imposed limitations and safeguards to ensure that the power of the police to arrest is not arbitrarily exercised:
(a) Firstly, except for a limited class of cases the right of arrest may not be exercised for non-seizable offences unless a warrant has been issued.
(b) Secondly, a suspect, once arrested, has to be produced in court within 48 hours: Art 9(4) of the Constitution.
(c) Thirdly, there is judicial oversight over any alleged arbitrary exercise of the powers of arrest.
[97] While the court will be slow to question the bona fide exercise of an executive discretion by the police, that does not mean the court will be slow to provide the appropriate relief when legitimate grievances are indeed shown to exist. What must always be borne in mind and indeed emphasised (as per Lord Diplock in Holgate-Mohammed v Duke [1984] AC 437 at 446) is that:
[98] A wide assortment of factors and imponderables is called into play when the police exercise their powers. It would be neither possible nor helpful to attempt to catalogue the myriad of circumstances that must be considered or taken into account in the exercise of such executive discretion.
[99] The power of arrest is provided in a number of statutes but the primary sources remain the Constitution and the CPC. The power to arrest without warrant is strictly limited by statute. Section 32 of the CPC empowers a police officer to arrest without a warrant in specified instances. As a testament to the importance attached to the maintenance and preservation of public order, s 40 of the MOA also authorises a police officer to effect an arrest if there is reasonable cause to believe that an offence under the MOA has been committed (see [92] above).
[100] When does an arrest occur? According to Lord Devlin in Shaaban v Chong Fook Kam [1969] 2 MLJ 219 at 220:
In other words, “arrest” means the apprehension, restraint or deprivation of a person’s liberty.
[101] It is settled law that a police officer may make a lawful arrest on the basis of reasonable suspicion. As Lord Devlin in Shaaban v Chong Fook Kam at 221 pointed out:
[102] It is also of crucial importance to point out that there is an essential distinction between reasonable suspicion and prima facie proof (per Lord Devlin in Shaaban v Chong Fook Kam at 221):
[103] The power to arrest without warrant is a discretionary power that can be neither mechanically nor automatically exercised. To justify an arrest there must be a factual substratum, which can be adjudged to be reasonable. This factual basis can either be within the police officer’s personal knowledge or reported to him. The power to arrest also arms a police officer with a right to warn a suspected offender to desist in his conduct and/or to disperse in lieu of arrest; see also s 211 of the CPC. In addition, the power to arrest also implies a power to detain.
[104] In instances where it is alleged that the police have improperly exercised their powers of apprehension and/or arrest there are in essence just three questions to be answered (per Woolf LJ (as he then was) in Castorina v The Chief Constable of Surrey 10 June 1988, Court of Appeal (Civil Division) (“Castorina”)):
In relation to the Castorina questions, the view of the police officer is subjective as to the fact of his suspicion and objective as to whether he had exercised his discretionary power reasonably.
[105] Returning to s 40 of the MOA, the words “may arrest without warrant any person offending in his view” confers on a police officer the executive discretion to arrest a person whenever he entertains reasonable grounds for suspicion that a provision of the MOA has been offended. The existence of the grounds for suspicion is a matter of fact. Whether the facts, if they exist, amount to a probable cause for arrest, is a matter of law. I also respectfully agree that the lawfulness of the manner in which the police officer exercised his statutory executive discretion “cannot be questioned in any court of law except upon those principles laid down by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation”: per Lord Diplock in Holgate-Mohammed v Duke ([97] supra) at 443.
[106] Turning to the power of the police to seize an article, this too must have a statutory basis. Section 40(2) of the MOA expressly confers on the police the power to seize an article. The seizure of that article must be “concerning by or for which” an offence has been committed.

The judgment continues past this page. Read the rest at eLitigation.

Chee Siok Chin and Others v Minister for Home Affairs and Another

Laws this judgment relies on

Grounds of decision

(a) Factual matrix [6] – [16]

(b) The procedural irregularities [17] – [27]

(i) Inappropriate originating process [17] – [20]

(ii) Wrong parties sued [21] – [27]

(c) Principles governing striking out [28] – [38]

(i) Frivolous or vexatious [37]

(ii) Abuse of process [38]

(d) Application of striking-out principles to the present case [39] – [40]

(e) Constitutionality of the MOA [41] – [56]

(f) A vignette of the rival contentions [57] – [59]

(g) Overview of the MOA [60] – [92]

(i) Relevant provisions of the MOA [63] – [87]

(ii) The power of arrest under the MOA [88] – [92]

(h) Reviewing the exercise of police powers [93] – [106]

(i) Analysis of the applicants’ substantive case [107] – [129]

(i) The preliminary issues [108] – [115]

(ii) The principal controversy [116] – [129]

(j) Conclusion [130] – [139]

Factual matrix

The procedural irregularities

Inappropriate originating process

Wrong parties sued

Principles governing striking out

Frivolous or vexatious

Abuse of process

Application of striking-out principles to the present case

Constitutionality of the MOA

A vignette of the rival contentions

Overview of the MOA

Relevant provisions of the MOA

The power of arrest under the MOA

Reviewing the exercise of police powers