Chee Soon Juan and another v Public Prosecutor

Steven Chong J:

[1] The appellants were each convicted of four charges for providing public entertainment by way of making an address in a place to which the public has access without a licence under s 19(1)(a) the Public Entertainments and Meetings Act (Cap 257, 2001 Rev Ed) (“PEMA”). The offences were committed on four different occasions (in particular, on 16 November 2005, 8, 12 and 15 April 2006) at separate locations. A fine of $5,000 (in default five weeks’ imprisonment) for each charge was imposed on Chee Soon Juan (“Dr Chee”) while a fine of $2,000 was imposed on the other appellant, Yap Keng Ho (“Mr Yap”) for each of the offences (with 10 days’ default imprisonment for the offences committed on 16 November 2005, 8 April 2006, 12 April 2006, and 14 days’ default imprisonment for the offence committed on 15 April 2006).

[2] The trial in respect of the offences committed on 8 April 2006 was heard by District Judge Jasvender Kaur over 10 days (MA 133 and 134 of 2008). The trial in respect of the offences committed on 16 November 2005 and 12 April 2006 lasting 33 days was heard by District Judge Thian Yee Sze (MA 273 and 279 of 2009), while District Judge Jill Tan heard the 15-day trial in respect of the offences committed on 15 April 2006 (MA 233 and 234 of 2010). The appellants appealed against all the convictions and the respective sentences. The three District Judges are hereinafter collectively referred to as “the trial Judges”.

[3] It is provided under s 3 of the PEMA that no public entertainment shall be provided unless it is in an approved place and in accordance with a licence issued by the Licensing Officer. Section 19(1)(a) of the PEMA stipulates that any person who provides any public entertainment without a licence issued under the PEMA shall be guilty of an offence and liable to a fine not exceeding $10,000 upon conviction. Section 2(m) of the Schedule to the PEMA defines public entertainment to include, inter alia, any “lecture, talk, address, debate or discussion…in any place to which the public or any class of the public has access whether gratuitously or otherwise.”

[4] It is undisputed that the appellants were physically present at the scene where the offences were committed, and that the offences took place at the locations where the public had access. It was also not disputed that the appellants did not apply for a licence.

[5] The appellants raised four main arguments in the appeals before me:

(a) First, the appellants asserted their right to freedom of speech under Art 14 of the Constitution of the Republic of Singapore (“the Constitution”).

(b) Second, the appellants argued that the police, the Executive, and the Public Entertainments Licensing Unit’s (“PELU”) blanket policy of not granting licences under the PEMA to political parties was discriminatory and therefore unconstitutional, in contravention of the appellants’ right to equal protection of the law, under Art 12 of the Constitution.

(c) Third, the appellants contended that they were victims of bad faith and discriminatory enforcement of the PEMA. The appellants claimed to have modelled their activities to be similar to those conducted by hawkers and stall-owners at public places, but were singled out and targeted by the police. The appellants argued that their prosecution was discriminatory and a denial of equality contrary to the law enshrined in Art 12 of the Constitution.

(d) Fourth, the appellants contended that they were only making a sales pitch which did not amount to an “address” within the meaning of s 19 of PEMA. I shall consider each of the arguments in turn.

[6] Mr Chia Ti Lik (“Mr Chia”) represented the appellant, Dr Chee in MA 133/2008. However, his role as counsel for Dr Chee was limited to advancing the legal submission that the provisions of the PEMA are in violation of the freedom of speech enshrined in Art 14 of the Constitution. It is not denied that the same legal issue was raised and resolved in two earlier High Court decisions, Jeyaretnam Joshua Benjamin v Public Prosecutor and another appeal [1989] 2 SLR(R) 419 (“JBJ v PP”) and Chee Soon Juan v Public Prosecutor [2003] 2 SLR(R) 445 (“Chee Soon Juan v PP”). In both decisions, the High Court held that the freedom of speech under Art 14 of the Constitution is not an absolute right. Specifically, in both decisions, the High Court held that the enactment of the PEMA was permitted under Art 14(2)(a) of the Constitution. The High Court in Chee Soon Juan v PP made the following pertinent observations:

[7] Dr Chee and Mr Yap both adopted Mr Chia’s submission on the alleged unconstitutionality of the PEMA for their respective appeals. Before me, Mr Chia’s legal submission was essentially the same arguments which were raised and subsequently rejected in the two earlier High Court decisions. In addition, Mr Chia drew my attention to the recent decision of the Court of Appeal of British Columbia in Vancouver (City) v Zhang [2010] BCCA 450 (“Vancouver v Zhang”) to mount a fresh challenge against the constitutionality of PEMA. The case concerned an application by the City Council of Vancouver for an injunction compelling Falun Gong practitioners to remove their billboards containing political expressions from a grassy portion of the city street in front of the Chinese consulate because they were in contravention of s 71 of the Street and Traffic By-Law (Revised By-law No 2849) (“the by-law”). The Court of Appeal of British Columbia held that s 71 of the by-law was unconstitutional as it was inconsistent with the freedom of expression guaranteed under s 2(b) of the Canadian Charter. A close examination of Vancouver v Zhang would reveal that it provides no assistance to the appellants in the appeals before me. First, the provisions of the Canadian Charter are quite different from that found in the Constitution of Singapore. Section 2(b) of the Canadian Charter provides the following:

[8] The freedom of expression under s 2(b) is, however, qualified by s 1 of the Canadian Charter which provides as follows:

[9] The restriction under s 1 of “such reasonable limits prescribed by law” has been interpreted by the Canadian case law R v Oakes [1986] 1 SCR 103 to refer to the “minimal impairment requirement”. Therefore, under the Canadian regime, the freedom of expression guaranteed under s 2(b) of the Charter is subject only to restrictions prescribed by law provided it meets the minimum impairment requirement. The position in Singapore is, however, quite different. Art 14 is expressly made subject to the right of Parliament to impose such restrictions as it may consider necessary or expedient by reasons of, inter alia, interest of the security of Singapore or “public order”. Unlike the position in Canada, there is no requirement in Singapore for such restrictions to meet the minimal impairment requirement. Furthermore, there is no dispute that the PEMA was validly passed by Parliament pursuant to Art 14(2)(a) of the Constitution.

[10] In Vancouver v Zhang, the court was persuaded to find that s 71 was unconstitutional because the City Council chose to maintain a complete ban against the use of structure for political expression. In the appeals before me, there is simply no evidence that a complete ban exist. The very fact that the PEMA specifically provides for a procedure to apply for a licence to provide public entertainment, which by definition includes making an address, would negate the existence of such a complete ban. As such, there is no merit whatsoever in the appellants’ renewed submission as regards the alleged unconstitutionality of the PEMA.

[11] The appellants argued that, as members of a political party, they were subjected to an alleged discriminatory application and enforcement of the PEMA by the police authorities, the Executive and the PELU. The appellants contend that there exists an Executive policy to impose a blanket ban on the issuance of licences to political parties to make speeches, and that such a policy contravenes their right to equal protection under the law as guaranteed by Art 12(1) of the Constitution.

[12] I find the appellants’ contentions to be wholly misconceived. First, during the appeal, I questioned Dr Chee as to how such a policy, even assuming that it exists, could translate into a defence against his convictions under s 19(1)(a) of PEMA. In particular, I asked Dr Chee whether such a policy would render the PEMA unconstitutional. Dr Chee was unable to provide a clear explanation. However, he accepted that the policy did not affect the constitutionality of the PEMA (see Notes of Evidence of the present appeal (“N/E”) at p 75):

[13] The logical effect of Dr Chee’s clarification is that the PEMA remains valid and if so it continues to be an offence under the PEMA to make an address without a licence.

[14] Second, it is undisputed that the appellants did not apply for the requisite licence to make an address. Given that there was no application for the licence under the PEMA, there is no decision that the Court can review. Without an application for a licence by the appellants, any alleged discriminatory licensing policy would have no effect on the appellants and would therefore be irrelevant to the appellants’ offences under the PEMA. Indeed, s 13 of the PEMA expressly provides for the proper procedure to be adopted in the event that the PELU rejects an application for a licence:

[15] The proper remedy for a complainant whose licence application was refused, is to seek grounds for such refusal in writing under s 13(2) and to appeal in writing to the Minister under s 13(3). This was elaborated by Chan J (as he then was) in JBJ v PP:

[16] The appellants tried to explain away their omission to apply for the licence. They claimed that there would have been no point in applying for a licence as they believed that the PELU or police authorities would in any event not consider and reject applications by political parties. I am unable to accept this contention. First, it has been decided in Tan Khee Wan Iris v Public Prosecutor [1995] 1 SLR(R) 723 (“Tan Khee Wan Iris”) that the offence of providing public entertainment without a licence under the PEMA is one of strict liability. There is no burden on the Prosecution to establish any mens rea as regards the absence of a licence. Second, the truth of the matter is the appellants had never intended to apply for a licence because such a requirement had not operated on their minds before and during the commission of the offences; the appellants did not believe that the licence was required since, according to their own case, they had only intended to make a sales pitch. Indeed, Dr Chee testified that he did not apply for a licence because he believed that none was required (see N/E at pp 265?266 for MA 133/2008):

[17] Dr Chee reiterated the same position subsequently (see N/E at p 593 for MA 233/234 of 2010):

[18] It is also noteworthy that District Judge Jill Tan observed in her judgment, Public Prosecutor v Chee Soon Juan & another [2010] SGDC 298 (“PP v Chee Soon Juan & anor”), the same:

[19] In light of the above, it is misleading for the appellants to submit that they did not obtain a licence because of their belief that a policy existed to deny licences to political parties for making public addresses and that such a policy is unconstitutional. The truth is that the appellants made a wrong judgment call that no licence was required.

[20] I further note that there is no evidence of the alleged discriminatory policy. The appellants attempted to suggest that the lack of evidence of the discriminatory policy was due to the trial Judges’ refusal to allow the appellants to cross-examine the police officers and officers from the PELU on the parliamentary statements made by Minister Wong Kan Seng. In particular, the appellants contended that the trial court was the appropriate forum to consider the constitutional challenge of the discriminatory licensing policy, and submitted that the trial Judges should have allowed the appellants to conduct the cross-examination. In the oral submissions before me, the appellants argued that they were entitled to raise the issue on the unconstitutionality of the discriminatory licensing policy before the trial Judges, and submitted that if the policy was indeed found to be unconstitutional, it would have provided a complete defence to the offence under the PEMA. The appellants relied on the decision of Boddington v British Transport Police [1992] 2 AC 143 (“Boddington”) to support their position that such collateral challenges are permitted in criminal proceedings, and argued that it was not necessary for such constitutional challenges to be dealt with by way of a separate judicial review. Dr Chee made the following submissions in the appeal (see N/E at pp 69 and 70):

Dr Chee further asserted that (see N/E at p 76):

[21] In Boddington, a railway company exercised its powers pursuant to s 67(1) of the UK Transport Act 1962 to create a by-law to ban smoking in all carriages. In his defence to a conviction of smoking in a carriage, the appellant argued that the railway company’s decision to create the relevant by-law was ultra vires the UK Transport Act. The House of Lords held that such an argument could be raised as a defence to criminal proceedings and need not be brought by way of a separate enquiry for judicial review. The decision of Boddington can be understood in its context; if the by-law was found to be ultra vires, it would have been declared invalid, and there would have been no offence for which the appellant in that case could have committed. This is in contrast to the present case, where, as already emphasised above at [12], the existence of the unconstitutional licensing policy, if any, would have no effect on the constitutionality of the PEMA. The statute which creates the offence would still remain valid. Furthermore, as highlighted above at [14], the purported existence of the unconstitutional licensing policy would, in the absence of an application for a licence, be irrelevant to the appellants’ case in any event. Moreover, I have serious doubts that the principle in Boddington would apply similarly for constitutional challenges raised in subordinate court proceedings, given the subordinate court’s lack of powers to grant public law remedies such as certiorari and mandamus. Indeed, it has been emphasised in Chan Hiang Leng Colin and others v Public Prosecutor [1994] 3 SLR(R) 209 (“Chan Hiang Leng”) that the position in England is quite different from the local position, given that our Subordinate Courts have the guidance of s 56A of the Subordinate Courts Act (Cap 321, 1999 Rev Ed) (“the Subordinate Courts Act”), or more recently, of s 395 of the Criminal Procedure Code 2010 (No. 15 of 2010) (“ the CPC 2010”). Both provisions are dealt with in greater detail below at [26]–[37]. The Court in Chan Hiang Leng pointed out that the principle in Boddington may apply to an ultra vires challenge of the relevant Order in question, but constitutional challenges should properly be governed by applications under s 56A (at [32]):

[22] In any event, the trial Judges’ decisions not to allow the appellants to cross-examine the police or officers from PELU on the Parliamentary reports made by the Minister were plainly correct for the simple reason that the reports had no bearing or relevance to the appellants’ case. The Minister’s statements related to the prohibition of outdoor and street demonstrations and protests; the statements relied upon by the appellants say nothing about prohibiting political parties from making addresses (under the PEMA) in public places. The Minister’s statements are reproduced below for ease of reference; see Singapore Parliamentary Debates (28 February 2008) vol 84 (Mr Wong Kan Seng, Deputy Prime Minister and Minister for Home Affairs):

[23] Evidently, there is nothing in the Minister’s parliamentary speech to suggest any alleged blanket ban on the issuance of permits to political parties to make addresses at public places. The parliamentary statements pertained to the prohibition of outdoor and street demonstrations and protests. The appellants’ contention in the context of the offences before me was therefore devoid of any merit.

[24] Dr Chee had also relied on some parliamentary statements made by Associate Professor Ho Peng Kee. These statements are reproduced below; see Singapore Parliamentary Debates (27 August 2007) vol 83, col 1337 (Associate Professor Ho Peng Kee for the Deputy Prime Minister and the Minister for Home Affairs):

[25] It is unclear why Dr Chee had sought to rely on these parliamentary statements. There is nothing in them to suggest that a policy exists to impose any blanket ban on all applications for licences by political parties under the PEMA to make addresses in a public place. The statements were made in the specific context of a cycling event, and are relevant only to the broader context of outdoor gatherings organised by political parties. They have no relevance to the present appeals. I should add that Dr Chee, in his submissions, had omitted to mention Associate Professor Ho’s clear statement that the policy against outdoor gatherings applies to all political parties.

[26] In the proceedings before District Judge Thian, the appellants applied for issues on the constitutionality of the PEMA, the constitutionality of the alleged Executive licensing policy, and the alleged discriminatory enforcement by the police, to be referred to the High Court under s 56A of the Subordinate Courts Act (hereinafter referred to as “s 56A”). Ordinarily, if there arises, in the course of the criminal proceedings, a serious or novel constitutional question relevant to the determination of the proceedings, the proper course of action would be for the Subordinate Court to stay the criminal proceedings and refer the constitutional question to the High Court. Section 56A provides for the procedure for the reference of constitutional challenges to the High Court:

[27] Section 56A was recently deleted from the Subordinate Courts Act with effect from 2 January 2011. The new version is now found in s 395 of the CPC 2010 which is reproduced as follows:

[28] Section 395 of the CPC 2010 represents a consolidated provision which governs the process in which any question of law is referred from the trial court to a higher court. The Explanatory Statement to the Criminal Procedure Code Bill (Bill No 11/2010) (27 April 2010) at p 432 provides a concise description of s 395:

[29] In this regard, a reference of a question of law which relates to the interpretation or effect of any constitutional provision, which was previously governed by the standalone provision under s 56A, is now subsumed under s 395 (in particular, s 395(2)(a)) of the CPC 2010. Indeed, with the enactment of s 395 of the CPC 2010, s 56A is no longer required and has consequently been repealed (see Sixth Schedule, Consequential and Related Amendments to Other Written Laws, Criminal Procedure Code Bill (Bill No 11/2010) (27 April 2010) at p 390, paragraph 105(c)). I further observe that s 395 of the CPC 2010 (in particular, s 395(2)(b)) encapsulates aspects of the repealed s 263 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), a provision which had previously governed the procedure of reserving points of law from a Subordinate Court acting in summary jurisdiction in any criminal cause or matter to the High Court.

[30] In my view, both s 56A and s 395(2)(a) (read with s 395(4)) of the CPC 2010 propound a two stage test. First, the Subordinate Court has to determine from the facts and submissions presented by the accused (or in certain cases, by the Prosecution), whether a relevant question concerning the interpretation or effect of any provision of the Constitution has arisen for determination by the High Court (“the first stage”). This requirement is evident from the language of s 56A(1) and s 395(2)(a) of the CPC 2010, and was alluded to in the decision of Chan Hiang Leng, where the Court decided that the lower court was correct not to make any reference to the High Court since no constitutional issue had arisen in that case:

[31] The first stage requires the Subordinate Court to characterise the factual matrix and arguments presented by the party asserting the constitutional challenge so as to determine whether a question has arisen on the interpretation or effect of a constitutional provision. The burden is on the party asserting the constitutional challenge to satisfy the Court that such a relevant question has arisen for determination. The mere assertion or allusion to a contravention of a provision of the Constitution is insufficient.

[32] The second requirement of s 56A and s 395(2)(a) (read with s 395(4)) of the CPC 2010 (“the second stage”) arises for consideration once the Subordinate Court decides that the proceedings does give rise to a question relating to the interpretation or effect of a provision in the Constitution which is relevant to the determination of the criminal proceedings. The Subordinate Court would thereafter have to decide whether it is a proper case to be referred to the High Court. As is evident from the phrase “the court hearing the proceedings may stay the proceedings” under s 56A(1), this is a matter of judicial discretion as was observed in Johari bin Kanadi and another v Public Prosecutor [2008] 3 SLR(R) 422 (at [9]):

[33] The pertinent question governing the second stage is, how should the Subordinate Court exercise this discretion? It should, at the outset, be stressed that the judicial discretion is necessarily a limited one. The Subordinate Court has to exercise this discretion with caution and judicious sensitivity to its own lack of jurisdiction to deal with the substantive issues of the constitutional challenge. Unlike the powers conferred on the High Court by way of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed ), the Subordinate Courts are not conferred the powers to grant certiorari or mandamus orders. Without such powers, the Subordinate Court has no jurisdiction to determine the substantive issues of any constitutional challenge. The Subordinate Court can however, properly exercise its discretion not to refer constitutional challenges which are frivolous, or which are made for collateral purposes or to delay proceedings, or if they otherwise constitute an abuse of process. In this regard, the Subordinate Court may consider the merits of the case in so far as to determine whether the constitutional issue raised is a genuine or serious one and not a frivolous one merely to delay proceedings. If the constitutional question raised has already been resolved by a superior court, such that the position in that area is settled and uncontroversial, no reference to the High Court should be permitted. Indeed, as compared to s 56A, these considerations are now expressly provided by statute: s 395(4) of the CPC 2010 expressly confers on the trial court the discretion to refuse an application (unless it is an application made by the Prosecution) to refer the purported constitutional question to the High Court, if the trial court considers the application to be frivolous or without any merit. Nevertheless, I emphasise the importance that the Subordinate Court should apply its mind to the facts of each case to determine if it indeed involves a constitutional question which has decidedly been resolved by a superior court, or whether a different, unresolved, constitutional question has arisen from the unique facts of the particular case at hand. If a serious or novel constitutional question does arise, the Subordinate Court should ordinarily stay the proceedings and refer the question to the High Court. In these circumstances however, the Subordinate Court should also be mindful that s 56A and s 395 of the CPC 2010 is not misused as a backdoor approach to evade the leave requirement for applications for judicial review under Order 53 of the Rules of Court.

[34] Turning the analysis to the present case, I am of the view that the trial Judges made the correct decisions not to stay the respective criminal proceedings in the courts below in order to refer the purported constitutional challenges to the High Court. I make no specific observation on the reasoning relied upon by the trial Judges to come to their respective decisions. I will however explain why there was indeed no necessity to stay the criminal proceedings to refer the purported constitutional questions to the High Court for determination.

[35] First, as explained above at [11]–[25], the appellants’ assertion of the alleged discriminatory policy of the police, the Executive and the PELU in imposing a blanket ban on the issuance of permits, even if taken as true, does not give rise to any question concerning the interpretation or effect of any provision of the Constitution that would have any bearing on the Prosecution’s case or the appellants’ defence. The alleged discriminatory policy to deny political parties the licence to make an address, even assuming arguendo that it exists, is wholly irrelevant to the present appeals as the appellants admitted that they had no intention to apply for a licence in the first place. The requirement of a licence had never operated on the appellants’ mind before and during the commission of the offences since they claimed that they had no intention to make a speech or to make an address. The appellants allegedly only had the intention to make a sales pitch of the newsletters. In effect, the first stage of s 56A is not satisfied as the appellants’ allegations do not give rise to any relevant question concerning the interpretation or effect of any provision of the Constitution, and as such, does not warrant any reference to the High Court.

[36] With regard to the constitutional challenge based on Art 14, the second stage of s 56A is not satisfied. It has already been shown above at [6] that the law in this area is well settled by the High Court.

[37] The appellants further argued in the alternative that they had modelled their conduct and activities to be the same as hawkers and stall-owners, and that by singling the appellants out, they were the target of discriminatory prosecution in contravention of Art 12 of the Constitution. This contention is in effect a substantive defence framed in the guise of a constitutional challenge. If the appellants’ conduct was indeed the same or similar to that of hawkers or stall-owners, the appellants would merely be selling goods, and that would operate as a defence to the offence of making an address without a licence. The proper analysis for this question therefore hinges on whether what was said by the appellant was a sales pitch. If the appellants’ conduct was found to be making only a sales pitch and nothing more, that would translate into a defence on the merits. However, as will be shown in the succeeding paragraphs below, the appellants’ conduct was manifestly different from those of hawkers and stall-owners; and was shown to have gone patently beyond that of merely making a sales pitch.

[38] To constitute an offence under s 19(1)(a) of the PEMA, the burden is on the Prosecution to satisfy the following elements:

[39] There is no dispute that the appellants were at the locations at the material time, and that each of the locations was a place to which the public had access. It was also undisputed that the appellants did not have the requisite licence at the material time.

[40] In addition, there was no dispute that the appellants did speak to a crowd of people at each of those public places. The dispute before the trial Judges in the proceedings below was whether those instances constituted “addresses” within the meaning of the PEMA. After each of the lengthy trials, the trial Judges reached their respective conclusions, having the benefit of the oral testimony of the various witnesses as well as the transcripts of the video recordings, that the appellants did make addresses on each of the four occasions.

[41] It is trite that an appellate court will only disturb findings of fact made by the trial judge when they are clearly against the weight of the evidence or plainly wrong: See Lim Ah Poh v Public Prosecutor [1992] 1 SLR(R) 192. Having examined the evidence, I can see no reason to disturb their findings. From my review, as explained below, the evidence supports the findings.

[42] As a starting point, there is no dispute on the content of what was said as recorded in the transcripts. Before me, the appellants dealt with this issue only at the threshold level, that is, they simply disagree with the trial Judges’ interpretation of what was said. No specific submission was made by the appellants in relation to each of the four incidents as to why, given the contents of what was said, they nonetheless did not constitute “addresses” within the PEMA. The appellants maintained that they were merely making a sales pitch to promote the sale of The New Democrat. As such, the only issue here is whether what was actually said amounted to an “address” under the PEMA. Specifically, Mr Yap claimed in the appeal before me that his subjective purpose at the material time was to sell the New Democrat, as opposed to making an address (see N/E Day 2 at p 15):

[43] Mr Yap’s self-declared subjective intent must be considered in the context of his actual objective conduct at the material time. In this regard, the actual words said by the appellants are material in determining whether an “address” was made. The law in this area is clear. The intention or purpose of the accused is irrelevant. In JBJ v PP, the Court explained the meaning of the word “address” in s 2(m) as follows:

[44] This position was endorsed in Chee Soon Juan v PP, where the Court observed that:

[45] The appellants also submitted that they did not make any address since their “speeches” were short and they were made at informal settings. However as rightly pointed out by the Prosecution, the length of the “speech” is not per se determinative of the issue. The contents of the “speeches”, the manner in which they were made and the audience to which they were addressed are all relevant factors for consideration.

[46] I turn my attention now to the actual words said by the appellants on each of the four occasions to examine whether they constitute as addresses within the meaning of the PEMA.

[47] What Mr Yap said on 16 November 2005 clearly went beyond that of making a sales pitch. He addressed the public on social issues, and attempted to advance his party’s political agenda by persuading members of the public to “refuse to be deceived” and to protect their own interests:

[48] Dr Chee’s speech on 16 November 2005 was in effect a political rally, much less a sales pitch:

[49] As for the offences committed on 8 April 2006, District Judge Kaur’s finding (see [74]–[76] of her Judgment, Public Prosecutor v Chee Soon Juan & anor [2008] SGDC 131) that Dr Chee had made an address to the public is likewise supported by the transcripts. Dr Chee addressed members of the public on a wide range of social issues: the income gap between the rich and the poor, the salaries of Ministers, the homeless in Singapore, the NKF saga and the need for an opposition. As for Mr Yap, he attempted to draw the public’s attention to an alleged wrongdoing on the part of the government in allegedly using taxpayers’ money to invest and co-operate with drug traffickers, despite having strict laws in Singapore against drug trafficking. This clearly went beyond promoting the sale of the New Democrat. Mr Yap also attempted to advance his political agenda by stating that the PAP was “putting on a pretence of being morally superior”.

[50] On 12 April 2006, Mr Yap again tried to advance his party’s political agenda and attempted to garner support from members of the public:

[51] On 12 April 2006, Dr Chee addressed members of the public in telling them how to cast their votes:

[52] As for the offences committed on 15 April 2006, District Judge Jill Tan made the following observations on the speeches made by Mr Yap (see PP v Chee Soon Juan & anor):

[53] In his own words, Mr Yap was trying to send a message to the public, in particular relation to the alleged high salaries drawn by people in government. Dr Chee was observed by District Judge Jill Tan to have repeatedly given advice to members of the public to take certain actions, where Dr Chee also gave forewarnings of the consequences of not heeding his advice:

[54] The above analysis merely illustrates some obvious examples on each of the four occasions where the appellants went beyond making a sales pitch. The totality of the evidence presents a compelling case that the appellants were indeed making addresses to members of the public on each of the four occasions, primarily to raise several issues of social concern, as well as to advance their party’s political agenda in highlighting several alleged shortcomings of the government and by advising members of the public on how to cast their votes. Many a time, the speeches resemble that of a political rally. In the face of such overwhelming objective evidence, it is no defence for the appellants to merely highlight from the transcripts that they did ask members of the public at certain instances to purchase the New Democrat. In the circumstances, I have no doubt that the offence of making an address without a licence was made out under the PEMA in respect of each of the four incidents.

[55] Before concluding, I should add that Mr Yap did raise a completely new point during his oral submission before me. He purported to rely on s 79 of the Penal Code (Cap 224, 1985 Rev Ed), which states as follows:

[56] Mr Yap acknowledged that this submission was not raised in the courts below or in any of his petitions of appeal. In any event, Mr Yap’s submission is sorely misconceived. He is precluded from relying on s 79 because he does not even admit to have committed the relevant act – he does not admit to making an address under the PEMA. As explained above, his defence is that he did not make nor did he intend to make any address in breach of the PEMA. There was therefore no question of “mistake” which is a prerequisite to invoke the defence under s79 of the Penal Code. I should add that it has been decided in Tan Khee Wan Iris that a defendant who seeks to rely upon s 79 of the Penal Code as a defence to the offence of providing public entertainment without a licence under the PEMA has the burden to show on a balance of probabilities that he had acted under a mistake, and by reason of that, he believed in good faith that he had a valid licence at the material time. Mr Yap has clearly failed to discharge this burden.

[57] In the appeals before me, the appellants did not make any submission on the sentences imposed. The appellants did not explain how and why the sentences were manifestly excessive. Indeed, they did not even make the assertion that the sentences were manifestly excessive. No mitigating factors were adduced, and no sentencing precedents or benchmarks were submitted to the court. I am of the view that the sentences imposed were appropriate and fair. A higher fine and a higher corresponding default sentence were rightly imposed on Dr Chee in view of his similar antecedents under the PEMA.

[58] For the reasons set out above, the appeals against both convictions and sentences are accordingly dismissed.