Public Prosecutor v Yue Mun Yew Gary

Quentin Loh J:

[1] Gary Yue Mun Yew (“the Respondent”), has the unfortunate and dubious distinction of being the first person to be charged and convicted under s 267C of the Penal Code (Cap 224, 1985 Rev Ed) (“the Penal Code”). It is surprising to note that this offence of incitement to violence has been on our statute books for over half a century. Section 267C reads:

[2] The Respondent claimed trial and was convicted on two charges after a two day trial. He was sentenced to a fine of $6,000 (or 6 weeks’ imprisonment in default of payment) in DAC 22568/2011 and $2,500 (or 2 weeks’ imprisonment in default of payment) in DAC 22569/2011. The present appeal concerns only the sentence for the first charge, DAC 22568/2011. The Prosecution appeals on the ground that the fine of $6,000 was manifestly inadequate and is pressing for a custodial sentence of between six to twelve months’ imprisonment.

[3] The relevant facts are not in dispute. On National Day, 9 August 2010, at 2.57pm, the Respondent posted a comment on the “Wall” of Temasek Review’s Facebook page. This post contained a link to a YouTube video entitled “Sadat Assassination”. The video depicted the assassination of Egypt’s former President, Muhamad Anwar al-Sadat, on 6 October 1981 during Egypt’s annual Victory Day parade. The Respondent’s accompanying comment read: “We should re-enact a live version of this on our own grand-stand during our national’s parade!!!!!!”

[4] Following the Respondent’s post, a series of comments were exchanged between the Respondent and one “Ng Jimmy”:

[5] On 1 September 2010, an informant lodged a Police Report which stated that:

[6] The Respondent was arrested on 9 September 2010, and charged on 18 January 2012. As noted above, following a 2 day hearing he was convicted and sentenced on 12 March 2012.

[7] The learned District Judge identified two key issues in determining the Respondent’s sentence:

(a) Whether the Respondent had intended the post to contain an incitement to violence; and

(b) Whether the Respondent had intended to incite violence.

[8] Although the learned District Judge found that the Respondent had intended his post to contain an incitement to violence, he accepted the Respondent’s explanation that the post was made “out of angst” and also the defence psychiatrist’s appraisal of the Respondent as “attention-seeking” to “enhance his self-esteem”. As such, the learned District Judge concluded that the Respondent did not intend to incite violence.

[9] As this is the first prosecution brought under s 267C of the Penal Code, an examination of the genealogy of the section would be apposite. The core of s 267C became part of our law in 1955, when s 151A was added to the Penal Code. Section 151A read:

While moving the Bill which introduced s 151A (see Singapore Parliamentary Debates, Official Report (22 September 1955) vol 1 at cols 769-771), the Attorney-General C H Butterfield stated that the making and circulation of documents of this kind clearly constituted a threat to law and order. Although he noted that such activities found much favour with the Malayan Communist Party, he did not accept that s 151A was needed only temporarily. He also added that the proposed provision covered activities which were not dealt with adequately by the Sedition Ordinance (Ordinance No 18 of 1938) (“Sedition Ordinance”) or the Undesirable Publications Ordinance (Ordinance No 19 of 1938) (“Undesirable Publications Ordinance”).These two Ordinances were passed in 1938 to replace s 124A of the Penal Code (Ordinance No 4 of 1871), which created the offence of Sedition, and the Seditious Publications Ordinance (Ordinance No 11 of 1915) (“Seditious Publications Ordinance”). In moving the Sedition Bill before the Legislative Council of the Straits Settlements (see Shorthand Report of the Proceedings of the Legislative Council of the Straits Settlements, Monday 13 June 1938), Attorney-General C G Howell provided the following reason:

[10] The Undesirable Publications Bill was read immediately after, and the Attorney-General introduced it as such:

[11] It is noteworthy that the Seditious Publications Ordinance did contain a proscription against incitements to violence. The following extract is taken from the Ordinance as it stood in 1955 (Ordinance 63 of 1935):

[12] In 2007, there was a comprehensive review of the Penal Code and many amendments were made to it. During the second reading of the amendment Bill, Senior Minister of State for Home Affairs, Associate Professor Ho Peng Kee, stated the following (Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 at cols 2242-2242):

[13] Accordingly, s 151A was repealed and s 267C, which covers not only documents but also electronic records, was introduced. It was under this updated provision that the Respondent was charged and convicted for making his Facebook posting.

[14] The learned District Judge below made the substantive legal finding that, based on the “clear language” of the statute, s 267C created a strict liability offence. However, s 267C is conspicuously silent on the issue of the offender’s intention, and it is settled law that the mere omission of a mens rea requirement does not automatically entail strict liability. Indeed, the consistent position of our courts has been precisely to the contrary, as stated by Yong Pung How CJ in Tan Cheng Kwee v Public Prosecutor [2002] 2 SLR(R) 122, at [13]:

[15] At the same time, the learned District Judge also observed that the presumption of mens rea is “often displaced in situations where the statutory offence in question pertains to issues of social concern”, citing Lord Evershed’s dicta in Lim Chin Aik v R [1963] AC 160, at [52]. The same approach was also adopted by the Singapore High Court in PP v Teo Kwang Kiang [1992] 2 SLR(R) 560, where the decision of the trial judge was reversed on the grounds that the presumption of mens rea had been rebutted by the wider interest in protecting the public from food unfit for consumption (see also Tan Cheng Kwee v PP [2002] 2 SLR(R) 122). This brings into sharp focus a basic issue of statutory interpretation – whether the weight of the public interest protected by s 267C is sufficient to displace the presumption of mens rea.

[16] I note that s 267C falls under the Chapter XIV of the Penal Code which deals with offences affecting the public tranquility, public health, safety, convenience, decency and morals. I have accordingly looked at the position of comparable provisions which proscribe free expression for similar public policy reasons. Both s 504 (intentional insult with intent to provoke a breach of the peace) and s 505 (statements conducing to public mischief) of the Penal Code contain express mens rea conditions to the commission of the offence. For example, s 505(b) allies intention with an alternative check of likely harm:

[17] A comparable offence is also set out in s 298 of the Penal Code, under Chapter XV which deals with offences relating to religion or race:

[18] Beyond the Penal Code, s 13(f) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“the Miscellaneous Offences Act”) provided that it was an offence to use abusive language if there was an intention to provoke a breach of the peace, such as by causing violence in public, or where a breach of the peace was likely to be caused. Following the passage of the Miscellaneous Offences (Public Order and Nuisance) (Amendment) Bill, s 13(f) of the old Miscellaneous Offences Act was replaced with 4 new sections, ie sections 13A to 13D, all of which retain some mens rea element except for s 13D:

[19] Turning next to the Sedition Act (Cap 290, 1985 Rev Ed), s 3(3) of the Sedition Act expressly provides that:

[20] However, even under the Sedition Act, there remains the check of the offending article of expression having a “tendency” to cause the outcomes enumerated in s 3(1) of the Sedition Act:

[21] This was treated as an offence of strict liability by Grenville Neighbour DJ in Public Prosecutor v Ong Kian Cheong and Another [2009] SGDC 163 (“Ong Kian Cheong”), at [47]:

[22] In arguing their case that s 267C should be construed as creating a strict liability offence, the Prosecution relied heavily on two Malaysian authorities: Public Prosecutor v Ooi Kee Saik & ors [1971] 2 MLJ 108 and Public Prosecutor v Param Cumaraswamy (No 2) [1986] 1 MLJ 512. Both cases concerned the application of the Sedition Act in Malaysia. These cases are not germane because the statutory provision employs an objective check by the concept of “seditious tendency” to restrict the operation of the offence. With such an objective check in place there is less of an obstacle to characterising the offence as one of strict liability.

[23] In considering the above provisions, it appears to me that statutory derogations from the right to free expression are typically circumscribed either by a mens rea element or by a more objective requirement that there is likely harm to society. Section 267C is peculiar in that it contains no limiting mechanism to regulate the ambit of the offence, so that on the face of s 267C even satirical materials or off-hand comments can fall within its ambit. Indeed, anyone who had created a link to the Temasek Review Facebook page on 9 August 2010 may well have committed an offence under s 267C by ‘communicating’ an electronic record containing an incitement of violence.

[24] Further, “incitement” is a loaded but ambiguous term. It is far more than just to persuade or suggest or, at a level up, to stir up or to arouse. At its core, it means to instigate, to move to action, to rouse, to spur or to stimulate vigorously into action by, as a prime example, making an inflammatory speech. Nonetheless, without some further check, s 267C is potentially very far reaching. At one end of the spectrum it can include situations where, for example, an advertisement for self-defence lessons with the caption “Fight Back!” could be read as taking the law into one’s own hands and therefore an incitement to violence. In my judgment, it cannot have been Parliament’s intention to criminalise such a wide swath of content when the possible potential for harm would probably only arise in certain cases.

[25] In addition, I am of the view that the history of s 267C, as tortuous as it is, also supports the presumption of mens rea. The Seditious Publications Ordinance contained an objective test similar to that used in the Sedition Act today – the publication had to be “likely or may have a tendency, directly or indirectly, whether by inference, suggestion, allusion, metaphor, implication or otherwise” to incite violence. This test then seems to have been discarded in the 1938 migration to the Sedition Ordinance and Undesirable Publications Ordinance. Instead, the Sedition Ordinance incorporated the common law concept of “seditious intention” in s 3, and specified the elements of this concept in ss 3(1)(i)-(v). s 3(2) also addressed the mens rea requirement of the offence:

[26] In contrast, the Undesirable Publications Ordinance appears to have created a strict liability offence under s 4(1) – although to my knowledge this has not been tested in our Courts – in relation to “[a]ny person who imports, publishes, sells, offers for sale, distributes or reproduces” a prohibited publication, but employs a caveat of “lawful excuse” under s 4(2) for the offence of possessing such a publication. The offence created by s 4(1) has survived largely intact in the current law, s 6(1) of the Undesirable Publications Act (Cap 338, 1998 Rev Ed) (“Undesirable Publications Act”) stipulating that:

[27] However, there has yet to be a definitive judicial pronouncement as to whether s 6(1) creates a strict liability offence, although I note that in PP v Lin Kok Joo [2006] SGDC 253, Valerie Thean DJ appears to have treated it as such. It might well be argued that, insofar as s 151A and s 267C shares the same parentage as s 4(1) of the Undesirable Publications Ordinance and s 6(1) of the Undesirable Publications Act, Parliament must have intended to create an offence of strict liability under all these provisions, in contradistinction to the qualified provisions under s 4(2) and s 6(2) of the latter two statutes respectively. This proceeds from the assumption that the offence of incitement to violence bears a closer kinship to the Undesirable Publications Ordinance than the Sedition Ordinance. In my opinion, however, such an approach is intuitive but flawed. It is crucial to understand that “seditious intention”, as understood under the common law at the time, was a concept allied to an incitement to violence.

[28] Within the common law, the term “incitement to violence” is inextricably linked to the historic origins of the offence of sedition, which was defined by Sir James Fitzjames Stephen in his Digest of the Criminal Law and subsequently accepted in a string of English authorities. This is helpfully summarised in the Law Commission’s Working Paper on Treason, Sedition and Allied Offences (No 72), at [70]:

[29] In Wallace-Johnson v The King [1940] 1 AC 231, the Privy Council considered the meaning of “seditious intention” within the application of s 326(8) of the Criminal Code of the Gold Coast (Cap 9, 1936 Rev Ed), which was in pari materia with s3 of the Sedition Ordinance. From the arguments of counsel (at p233) it appears that there was extensive English authority establishing that a seditious intention was yoked to the incitement to violence:

[30] The Privy Council, however, came to the conclusion that the clear and unambiguous wording of the Criminal Code did not admit such a requirement of incitement to violence (at pp 240 – 241):

[31] This case casts vital illumination on how s 3(1)(a) of the Seditious Publications Ordinance was left out of the transition to the Sedition Ordinance in 1938, leaving a gap which was then filled in 1955 with the passage of s 151A. Although the Sedition Ordinance was meant to import the English position on sedition into the laws of Singapore, the failure to expressly include a provision for incitement to violence created a vacuum which the Attorney General was moved to address over two decades later. The lineage of the present-day s 267C must therefore be traced through the Sedition Ordinance rather than the Undesirable Publications Ordinance, and back into the Seditious Publications Ordinance. The unequivocal position of Parliament with regard to sedition has always been to place an objective check on the scope of the offence in the form of a seditious tendency or seditious intention requirement. It is clear that Parliament has never intended to create an unfettered offence under any of these Ordinances, and indeed the position remains the same in the present day Sedition Act. With this in mind, I am disinclined to regard s 267C as having fallen so far from the tree that it must constitute a strict liability offence. Accordingly, the general requirement of mens rea must be satisfied in order to make out the offence of incitement to violence.

[32] The learned District Judge’s reasoning proceeded from the premise that as s 505 of the Penal Code expressly imported a mens rea criteria, Parliament must have intended through the bare wording of s 267C to create an offence of strict liability. With great respect, while I see the force of this approach, it may be a non sequitur since one might just as validly contend that if Parliament had intended to create a strict liability offence it would have expressly said so, just as in s 3(3) of the Sedition Act. The learned District Judge’s reasoning must also yield to the force of s 267C’s legislative history, which to be fair, was not fully explored before him.

[33] On my analysis of comparable statutes, the history of the offence of incitement to violence and the public policy interests at stake, I do not think it is correct to regard s 267C as a strict liability offence. There are compelling reasons to refrain from displacing the presumption of mens rea even though s 267C does perform an important function. Nevertheless, I agree with the learned District Judge that the Respondent’s intentions would remain relevant as a matter of sentencing.

[34] The Prosecution submitted that a close parallel can be drawn to the offence of criminal intimidation where the threat is to cause death, for which the benchmark sentence is six to twelve months’ imprisonment. With respect, I am unable to accept this. The act of telling another something like “I am going to kill you” or “I will kill you” belongs to a different and more serious class of criminal wrongdoing. The threat is personal and more immediate. The conduct proscribed by s 267C may well contain an element of intimidation or malice, but it is the element of encouraging or instigating physical harm to a person or class of persons which is specifically targeted by the provision. There is a distinct difference between a statement which constitutes hurt or harm in itself, and a statement which incites the hurting or harming of another – although both are mala in se. It is also clear that the elements of public welfare and social order are more attenuated in the context of criminal intimidation. I am therefore of the view that the sentencing precedents for criminal intimidation cannot serve as meaningful guides for the present appeal, although I agree that a comparative analysis of the substantive offences does provide a useful backdrop against which to isolate the distinguishing elements of s 267C.

[35] Before proceeding any further I pause to note that at a lower category of seriousness, s 267C can be compared to ss 13A and 13C of the Miscellaneous Offences Act, which both stipulate a non-custodial sentence:

[36] The offence carved out by s 267C does not appear at first blush to occupy any ready pedestal within the canon of our law. It was introduced (see [9] supra) ostensibly to plug the gap between the Sedition Ordinance and Undesirable Publications Ordinance, and has survived Parliament’s review of the Penal Code in 2007. The offence also seems to fall at some intermediate and indeterminate point between specific provisions which proscribe the incitement of, for example, religious and racial hatred (see s 268 of the Penal Code), and the general principle of inchoate liability enshrined in s 107 of the Penal Code. This is crucial from a sentencing perspective since, in very general terms, the severity of the punishment in the former class of offences is also affected by the additional dimension of the gravity of the subject matter involved.

[37] On a plain reading of s 267C, the provision creates a general offence of inflammatory instigation of physical harm through acts of violence. It also covers similar levels of instigation of disobedience to the law or any lawful order of a public servant or of something that is likely to lead to a breach of the peace. Although the genesis of the provision indicates that it was introduced specifically to combat political incitements to violence, the remit of s 267C is clearly not in any way confined to the political sphere and clearly applies to other provocations which threaten public safety and order and disobedience to the law or lawful orders of a public servant. It is not difficult, even in today’s context, to envisage how extremist interest groups can exhort their acolytes to take up arms in service of a political cause or, as the English riots in August 2011 show, to instigate disobedience to the law. It is equally evident that the public interest lies in meeting such political or special interest groups’ stratagems with the full weight of the criminal law. Section 267C therefore represents a general but an important bulwark against threats to society and civil order. Its importance comes to the fore where the veneer of society has grown thin and not as strong as it should be or where there are insidious attempts to erode that vital veneer from beneath.

[38] Given the political context of the present case, I have been particularly mindful of the need to give sufficient weight to the value of free expression. A free and open discourse is indispensable to the proper functioning of any democracy, and provisions like s 267C may potentially have an adverse chilling effect on this vital civic conversation. That is not what s 267C was meant to achieve. Hence in my judgment s 267C cannot be a strict liability offence. The Prosecution must prove the mens rea beyond a reasonable doubt. Having said that however, free expression cannot be so unfettered as to allow individuals at the fringes of society to cause harm under the guise of expression. While the personal and public benefits of free expression would sufficiently recompense for inevitable encounters with the rude, the obstinate, the obtuse and even the offensive, it is no part of the constitutional bargain that citizens must bear violence or disobedience to law and order – or the threat thereof – as the price of free expression. Those who incite violence and disorder do not contribute to the national conversation – indeed, the effect of such provocation is to subvert the free exchange of ideas and to replace reason with violence. That has no place in a democratic society based on the rule of law. As such, the balance between the individual’s right to free expression and the public’s right to be free from harm must tilt towards the latter. It is also imperative that the courts who have discretion over sentencing exercise their power for the protection of the public and society as a whole.

[39] There can be no question that the Respondent was correctly convicted. Whilst I entirely agree with the learned District Judge below that the Respondent intended the posting to contain an incitement to violence, with great respect, I cannot agree with his finding that this is significantly different from a finding that the accused had intended to incite violence with his posting or that there was no direct evidence that the accused had intended to incite violence with his posting (see Grounds of Decision at [41], [42] and [44]). I cannot discern any difference between these two intentions.

[40] There is in my judgment abundant evidence that the Respondent intended to incite violence with the posting. The video, entitled “Sadat’s Assassination” begins with an assassin loading his rifle, scenes of the parade, gunmen or a gunman leaping off a military lorry, shooting into the grandstand and ends with the late President Assad being shot. It also appears from the video that he was hit by 37 bullets. Taken with the Respondent’s comment that we should re-enact this on our grandstand during our National Day Parade, it is difficult to see this other than as a clear incitement to violence and it is difficult to accept the Respondent’s claim that he did not intend the natural consequence of his actions. If indeed there can be any doubt on that conclusion on the Respondent’s intention in his posting, the replies by the Respondent to one Jimmy Ng set out above will put any doubts, if indeed there can be any, to rest:

[41] The mens rea has been satisfied beyond reasonable doubt. I am therefore of the view that the Respondent’s offence is a very serious one which, in the absence of compelling mitigating factors, warrants a custodial sentence for a not insubstantial term.

[42] The seriousness of the offence is such that the court is entitled to apply the precautionary principle in sentencing – it cannot be that only those who succeed in causing violence will receive a custodial sentence. Instead, a stiff sentence can be warranted on the grounds of deterring behaviour which has the potential to be injurious to public order and safety. In Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653 at [28], VK Rajah JA offered the following guidance:

[43] The cited passage is of particular importance in the present appeal, since s 267C has hitherto remained dormant. However, it is clear that the public policy concerns involved in the present case do warrant some measure of general deterrence to be taken into account, particularly given the technological milieu in which the incitement took place (an aspect which I will return to in more detail below, at [52] – [53]).

[44] In assessing the facts of each case, the court must take into consideration factors such as the context, nature, and subject-matter of the incitement. In particular, I am cognisant that the meaning and provocation of an expression may be almost completely dependent on the context within which it is made. A statement could be entirely innocuous in one time and place, and to one audience; but the very same statement could be incendiary in other situations. By the same token, an invidious statement could amount to a serious incitement to violence even though violence never materialises, just as an otherwise innocent statement could be the proverbial straw that breaks the camel’s back. Insofar as s 267C creates a standalone offence, the severity of the punishment meted out must first and foremost be yoked to the seriousness of the incitement within the particular context of its creation, as apart from the actual outcome produced.

[45] It must be emphasised that this provision does not represent an indictment of the Respondent’s views on government policy or his political views. Section 267C is not targeted at any specific form of hate speech, nor does it amount to a provision specifically aimed at sedition. The purpose of s 267C is to prosecute and thereby deter those who, for whatever motive or purpose, seek to threaten public order by instigating and causing others to act with violence.

[46] Given that this case is the first case brought under s 267C, I have derived considerable guidance from recent cases in which our courts have had to balance free expression with a countervailing public interest. One of these cases, PP v Koh Song Huat Benjamin [2005] SGDC 272, involved the first conviction under s 4(1)(a) of the Sedition Act. The two accused persons posted anti-Malay and anti-Muslim remarks on the internet. In the determination of sentence, Richard Magnus SDJ explained at [6] that:

With respect, I entirely agree. In that case, the first accused was sentenced to one month’s imprisonment per charge, and the other accused received the maximum fine of $5000 with a nominal one day’s imprisonment. I pause to note that in my view, the first accused’s sentence was too light. Be that as it may, this benchmark established by PP v Koh Song Huat Benjamin [2005] SGDC 272 was followed in PP v Ong Kian Cheong and Another [2009] SGDC 163, with a sentence of 4 weeks’ imprisonment per charge imposed on the accused in that case.

[47] A similar tension between free expression and public interest also features in the application of s 505 of the Penal Code. In Leong Mun Kwai v PP [1971-1973] SLR(R) 707 (“Leong Mun Kwai”), the appellant had made general statements at a political rally during general elections which were adjudged to be “likely to incite people to violence and not only against just one individual, the Prime Minister, but ministers, members of Parliament, community leaders who are mentioned specifically in his speech.” (see Leong Mun Kwai at [4]) Wee Chong Jin CJ thought that the initial sentence of one month’s imprisonment and a fine of $3,000 was manifestly inadequate, and increased the term of imprisonment to 4 months.

[48] I have also examined the approach of the English courts in relation to the riots that took place in August 2011. I accept that there is a difference in those cases as the breakdown of law and order had already broken through the veneer of their civilised society; widespread rioting had broken out when some individuals used the internet and mobile telephones to incite rioting, violence and destruction of property. The sentencing appeals for several of the cases arising from those events were heard jointly before the Court of Appeal in R v Blackshaw [2012] 1 WLR 1126. Two of the defendants, Blackshaw and Sutcliffe, had used social media to incite the spread of unrest which was already taking place in other parts of England. Blackshaw created an event on the Facebook site in order to organise a “Smash down in Northwick Town”. Sutcliffe also used Facebook to put up a webpage called “The Warrington Riots”. In neither case did the advertised meetings materialise before the Police intervened. Both were sentenced to 4 years’ imprisonment. Lord Judge CJ, in delivering the judgment of the Court of Appeal, held at [74] – [75] that:

[49] R v Blackshaw clearly demonstrates why provisions such as s 267C have an important role in preserving public order and safety. It is far better to preserve and prevent a breakdown in public order and safety than to deal with the aftermath when untold physical, economic, emotional and psychological damage has been done. The August 2011 riots shocked the English nation and caused a good deal of soul searching within their society. For a good 8 decades or so of the 20 Century, England was looked upon as a civilised society with its members taking great pride in their civilised behaviour and strong rule of law. Many wondered how it could come to pass that law and order was just thrown aside and the breakdown in law and order could spread so quickly within their society during that fateful August of 2011. It was not just the poor and disadvantaged who participated in those riots but some economically well-off individuals also took part in the riots and looting. Lord Judge CJ began his judgment with the following:

[50] It should be noted, however, that both defendants in R v Blackshaw had sought to exploit an already combustible situation; riots had already broken out and the context in which the incitements took place greatly magnified the defendants’ culpability. Lord Judge CJ also acknowledged at [73] that the severity of the incitement was exacerbated by the use of technology:

[51] As mentioned above (at [102]), s 267C was specifically modified to take into account the advent of electronic media. The impact of the internet was also explored by Sundaresh Menon JC (as he then was) in Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 at [1]:

[52] I would add that the internet has added completely new paradigms in which we conduct our daily lives and interact with other members of society. The benefits are tremendous. But there is also a downside to this advancement in technology. A person who may not be so ready to say something in front of others is now able to do so in the privacy of his room and with no one present to immediately disagree or take him to task for what he says. With such safety, seclusion and lack of an audience in person, many will be emboldened to make more extreme statements and take more extreme views. More importantly, what a person says on the internet has a far wider reach than hitherto thought possible. We no longer make a statement to a group of people we know. That statement goes out to a far larger number of people than we realise. Friends may realise the maker of the statement as someone who is not serious or temporarily upset, or that it is out of character, but that is no guarantee that other recipients know that and will not react to that statement in all seriousness.

[53] A case in point is R v Liam Stacey (Appeal No: A20120033 of the Swansea Crown Court) where the appellant, admittedly drunk, sent out some very offensive messages on twitter using threatening, abusive or insulting words with intent to cause harassment, alarm or distress aggravated with racial slurs to other users of twitter when the Bolton Wanderers player, Fabrice Muamba, collapsed whilst playing against Tottenham Hotspur in March 2012. They were so offensive and vulgar that they do not deserve repeating. The appellant’s tweets provoked complaints and he was quickly traced. When arrested, he admitted to the posts, said he was drunk at that time and he was really sorry and had apologised online for what he had done. In mitigation, friends said his postings were out of character. He was aged 21 and an undergraduate studying biology at Swansea University. Wyn Williams J, sitting with two magistrates on appeal, held (at [14]) that immediate imprisonment was justified and upheld the sentence of 56 days imprisonment as being “not too long”.

[54] Shortened communication synapses often lead to hasty conclusions, and the internet can curtail tolerance and shorten tempers as well. It is inevitable that public order offences will increasingly take place in the realm of cyberspace. The present case exemplifies just such an abuse of the internet, with the Respondent using openly available tools of mass media for both his medium (Facebook) and his message (Youtube). The Respondent was also able to receive an immediate response to his missive, whether through comments posted by other users or by “likes” voted for on the Facebook page. The potential impact of his post is also greatly magnified due to the accessibility of the webpage and the ease of its replication. One might think that this is merely an isolated instance of an angry man venting steam in an ill-advised fashion, but the nature of the internet is such that his words become instantly available to the wider public. It is therefore important to send a strong signal that the internet is not an entirely unregulated space wherein calls to violence or messages laced with racial slurs are treated as an acceptable mode of communication. To condone such online behaviour would also represent a collective failure to fulfil the potential of the internet as an empowering forum for the good of mankind and for the creation of a more robust civic consciousness and civilised society.

[55] In the proceedings below, the Respondent submitted a psychiatric report prepared by Dr Tan Chue Tin, whose opinion included the following analysis of the Respondent:

[56] It would appear from this analysis that the Respondent’s intentions in making the post were simply to express his frustrations and attract attention. However these are no more than personality or character traits of the Respondent and not some psychiatric condition or illness that may diminish his responsibility for his actions. He therefore has to take responsibility for his actions.

[57] The Respondent also explained, in his first statement on 9 September 2009 that his post was:

[58] The Respondent wanted the ‘video’ of the ‘Sadat Assassination’ to “act as a strong visual statement to signify the growing public unhappiness against the incumbent government.” The Respondent curiously does not say that he himself is against the IRs or disagrees with their introduction into Singapore, but his frustration and anger is the perceived betrayal of the people by the introduction of the IRs in spite of what he perceives as “tremendous outcries”.

[59] In his statement recorded under s 23(1) of the Criminal Procedure Code 2010 (Act 15 of 2010), the Respondent states that his posting and comments were done:

It appears that no one else advocated violence as the Respondent did. As set out above, one Jimmy Ng who was obviously against such policies, expressly disagreed with the Respondent.

[60] It must be emphasized that unhappiness with or disagreement over the ‘Integrated Resorts’, pro-foreigner policies or ‘bread and butter issues’ of the day at that point of time, or any such similar issues are legitimate subjects of debate within our society. A citizen in entitled to have genuine concerns about government policies and to disagree with them and, if necessary, the courts will protect such rights. There are many channels through which the Respondent could have expressed these views, if indeed they were so held by him, and he remains free to do so. Indeed these very issues were canvassed during the last general elections and citizens expressed their concerns through the ballot box and therefore through their elected representatives in Parliament as well as through various other channels, including the internet. No one has even hinted that these concerns or even grievances were illegitimate. Indeed the debate on some of those issues continues openly today.

[61] I therefore find the Respondent’s incitement of violence unacceptable. What he did was to express no real view apart from a resort to violence. The dominant, indeed the only discernible, purpose of the post was to depict and suggest an act of violence against officials at a public parade.

[62] One cannot simply write off the Respondent’s conduct as merely frivolous. This was not just a ‘bad joke’ or an off-hand comment. It was a targeted outburst which was timed to coincide with National Day celebrations, and would appear to any reader to have been made in all seriousness. The Respondent’s austerity of tone, which belies his purported excuse, is particularly evident from his responses to “Ng Jimmy” as set out above. He now has to take responsibility for his actions.

[63] Although the post coincided with the 2010 National Day celebrations, I note that there was no existing unrest or social tension which the Respondent could be said to be attempting to exploit or explode. Whilst remaining watchful as many other countries were, eg., against terrorist threats, we were otherwise at peace. The court must therefore determine the seriousness of an incitement to violence which was graphic, extreme, and nihilistic, but no more. It is noteworthy that only 1 complaint was received in relation to the post, and that the Informant, one Mr Tan Wu Meng, only lodged the police report on 1 September 2010, having come across it almost a month earlier on 9 August 2010. Indeed, the Informant’s concern appears to have crystallised only retrospectively, “after reading the recent news relating to postings on the internet.” “Ng Jimmy’s” response also indicates that the post was received not so much as an active incitement of violence but a graphic depiction of extremism. It appears to have only drawn his one response.

[64] Taking into account the above factors, especially in times of social stability, but bearing in mind that the social veneer cannot be allowed to be eroded by allowing such statements or postings, I am of the view that a custodial sentence of 3 months’ imprisonment should be the starting point for such offence on these facts. But as the English cases on the August 2011 riots show, in different times and circumstances, the term of imprisonment could be far longer.

[65] The Respondent is 36 years of age and obtained a degree in engineering in 2000 from the University of Glasgow, Scotland. He was employed by Singapore Technologies Kinetics and had worked in that company for 10 years. His last appointment was that of an Assistant Principal Engineer. In his promotion letters, he appears to have done well in the company. He is unmarried and lives with and takes care of his 72 year old father who was recently diagnosed with mylodisplastic syndrome, a blood disorder. His mother passed away in 1999. He remains the sole breadwinner of his family. He has an older brother who is married and lives separately in his own household.

[66] In addition, the Respondent’s employment was terminated. The Prosecution very properly accepted that the Respondent’s termination of employment was caused by this incident. This is not surprising as the Respondent was working in the defence industry. The Respondent is currently unemployed, and his counsel informed the learned District Judge below that the Respondent is currently attending counselling sessions with Dr Tan Chue Tin.

[67] However, I note that the fact that the Respondent’s career or job prospects might be ruined by his conviction is but a natural consequence of his own acts and ought to be given little or no weight in mitigation. In Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009), the learned author described the above principle to be of “universal application to almost all convicted offenders”: see p 737. The fact that hardship will be caused to the Respondent’s family by his imprisonment would also be of little or no weight save in exceptional circumstances, even where the offender is the sole or main breadwinner of the family. In Public Prosecutor v Tan Fook Sum [1999] 1 SLR(R) 1022, Yong Pung How CJ held at [31] that:

[68] Save in exceptional circumstances, little or no weight would be given during mitigation to the fact that the accused had sickly or aged parents to support, especially if the imprisonment term is short. In Yoganathan R v Public Prosecutor and another appeal [1999] 3 SLR(R) 346, the accused was charged with taking care of his aged mother suffering from diabetes. After carefully considering the aggravating and mitigating circumstances of the case, Yong CJ enhanced the sentence of the accused, explaining at [41] that:

[69] I am therefore constrained to attach little weight to the effect of the conviction on the Respondent’s personal livelihood and the hardship caused to his father, as the imprisonment term is relatively short and I do not see any exceptional circumstances in this case.

[70] However, like the learned District Judge below, I take into account the following factors in mitigation:

(a) the Respondent is a first time offender and does not have any criminal antecedents of a similar nature;

(b) the Respondent has cooperated fully with the police during investigations;

(c) the Respondent has expressed genuine remorse for his conduct and has sought psychiatric help; and

(d) the extent to which public peace was affected was low.

[71] The above factors were corroborated by the Investigating Officer who also testified that he was not aware of any problems affecting public peace or harmony that arose from or connected with the Respondent’s posting and there was only one report made to the police. However, I would not attach too much weight to the last factor given that the chief consideration when imposing a custodial sentence in the present case is to deter other like-minded members of society from engaging in such irresponsible behaviour. If the Respondent’s conduct had actually caused public peace to be breached, that would, depending on the extent of violence incited, probably constitute a severe aggravating factor for sentencing.