User:Vilaivongse/sandbox

Common Law
The common law offence of sedition, which is committed by spoken or written words published with seditious intent, emerged in an era where political violence threatened the stability of governments. Star Chamber, in the case of De Libellis Famosis, defined seditious libel as the criticism of public persons or the government and established it as a crime. The crime of sedition was premised on the need to maintain respect for the government and its agents for criticism of public persons or the government undermines respect for public authorities. Even though Star Chamber was later dissolved, seditious libel had became established as a common law offence.

Originally designed to protect the Crown and government from any potential uprising, sedition laws prohibited any acts, speech, or publications, or writing that were made with seditious intent. Seditious intent is broadly defined in R v Chief Metropolitan Stipendiary, ex parte Choudhury as “encouraging the violent overthrow of democratic institutions.” In the important common law jurisdictions, “seditious libel means defiance or censure of constituted authority leading to foreseeable harm to public order” and the court in ex parte Choudhury clarified that “constituted authority” refers to “some person or body holding public office or discharging some public function of the state”.

Singapore History
Sedition laws were initially introduced in Singapore through the Sedition Ordinance 1938. The historical roots of the current version of the Sedition Act was drawn from the Malaysian Sedition Ordinance, which was first introduced in Malaysia in 1948 by the British to silence dissent against colonialism and British rule. It was gazetted after the merger between Singapore and Malaya to extend to Singapore as a constituent state of the Federation of Malaysia. Singapore retained the legislation after its separation from Malaysia.

Section 6(2)
Section 6(2) of the Sedition Act provides that {{Quote|text=“No person shall be convicted of any offence referred to in section 4(1)(c) or (d) if such person proves that the publication in respect of which he is charged was printed, published, sold, offered for sale, distributed, reproduced or imported (as the case may be) without his authority, consent and knowledge and without any want of due care or caution on his part or that he did not know and had no reason to believe that the publication had a seditious tendency."

A plain reading of the provision suggests that there are two limbs, which operate disjunctively, such that to avail himself of section 6(2), an accused needs only to prove that the publication was distributed:
 * 1) “without his authority, consent and knowledge and without any want of due care or caution on his part”; or
 * 2) “he did not know and had no reason to believe that the publication had a seditious tendency”.

While there is no pronouncement yet which has conclusively ruled on the interpretation of section 6(2), the second limb of section 6(2) was juridically expounded by Neighbour D.J. in Ong Kian Cheong.

An accused having no knowledge or reason to believe that the publication was seditious
In Ong Kian Cheong, the issue was whether the accused persons had knowledge or reason to believe that the publications possessed seditious tendency. The first accused claimed that he did not read the tracts and thus did not know that they had seditious tendencies. He alleged that all he did was to post the tracts after the second accused had prepared them. The second accused claimed that she had purchased and distributed the tracts without reading them and had no reason to believe the publications were seditious or objectionable because they were freely available on sale in local bookstores.

Neighbour D.J., referring to the Singapore Court of Appeal’s case of Tan Kiam Peng v Public Prosecutor, held that the requirement of knowledge be satisfied if wilful blindness could be proved, as wilful blindness is, in law, a form of actual knowledge. To establish wilful blindness, the person concerned must have a clear suspicion that something is amiss, but nonetheless makes a deliberate decision not to make further inquiries in order to avoid confirming what the actual situation is.

The learned Neighbour D.J. took into account the following to conclude that both the accused persons were wilfully blind to the seditious contents of the publications.
 * 1) Both the accused persons were aware that something was amiss with the consignment of tracts when it was detained by the MDA. In fact, the 2nd accused was formally informed that the publications she ordered were detained for being undesirable or objectionable. However, despite “having their suspicions firmly grounded”, and despite having every opportunity to examine the publications, they “made a conscious and deliberate decision not to investigate further”.
 * 2) Both the accused made no effort to surrender the offending publications, to ascertain from the MDA why the publications were objectionable, or to take the other publications to MDA to determine whether they could be objectionable.
 * 3) Even though the offending tracts were sold to the public in Tecman bookstore, importers are informed to refer doubtful publications to the MDA and have access to MDA’s database to determine whether a publication is objectionable. There is no evidence that the accused persons did any of these things.
 * 4) Since both the accused read some tracts after they ordered them, they would have known that the tracts had a seditious tendency because the tracts are easy to read and a quick flip would easily give them a gist of the gospel message.
 * 5) It is difficult to believe that in their fervor to spread the gospel truth, both the accused did not read the publications. The titles are sufficiently arousing for one to at least flip through the contents. Furthermore, given that they consciously undertook this evangelical exercise to convert persons of other faiths, they must have known the contents of the tracts they were distributing.

Accordingly, the accused persons could not avail themselves of the defence in section 6(2).

Neighbour D.J.'s judgment has been criticised on the basis that the findings that the tracts were objectionable and that the accused persons knew about the seditious contents of the tracts are insufficient to fulfil the standard of proof. The High Court of Singapore in Koh Hak Boon v Public Prosecutor established that “the court must assume the position of the actual individual involved (i.e. including his knowledge and experience) [subjective inquiry], but must reason (i.e. infer from the facts known to such individual) from that position like an objective reasonable man [objective inquiry]”. However, instead of applying this test, Neighbour D.J. simply asserted that the accused persons must have known and/or had reason to believe that the tracts were objectionable and had a seditious tendency.

There is also a suggestion that the religious doctrine held by the accused persons is relevant to the issue of whether the content was objectionable or seditious. If the accused persons have religious beliefs similar to that of the tracts’ author, it would be unlikely that reasonable persons in the position of the accused persons would have thought that the content was objectionable or seditious.

Sentencing Considerations
Magnus S.D.J in Koh Song Huat Benjamin made it clear that a conviction under s 4(1)(a) of the Sedition Act will be met with a sentence of general deterrence. This follows from Neighbour D.J.’s reliance in Ong Kian Cheong on V.K. Rajah J’s statement in Public Prosecutor v Law Aik Meng that there are many other situations where general deterrence assumes significance and relevance and one of which is offences involving community and/or race relations.

Magnus S.D.J noted the appropriateness of a custodial sentence for such an offence. Apart from that section 4(1)(a) offence is mala per se, the learned judge alluded to “the especial sensitivity of racial and religious issues in our multicultural society”, with specific mention to the Maria Hertogh incident in the 1950s and the 1964 race riots, as well as the “current domestic and international security climate”. It was pointed out that Magnus SDJ also apparently recognised the educative potential of the sentences, as borne out by his Honour’s sentencing of the second accused. Even though the prosecution had only urged for the imposition of the maximum fine, his Honour felt that a nominal one-day imprisonment was also necessary to signify the seriousness of the offence.

Magnus S.D.J also took into account mitigating factors specific to the case – the offending acts by the accused persons were nipped early and contained and the accused took action to reduce the offensiveness of their acts. Benjamin Koh decided to issue an apology and removed the offending material from public access. Nicholas Lim locked the discussion thread and tendered his written apology. The significance of these mitigating factors appears to be downplayed in Ong Kian Cheong, in which, Neighbour D.J. observed that regardless, the offences upon which they are convicted are serious ones in that they have the capacity to undermine and erode racial and religious harmony in Singapore.

Magnus S.D.J also equated the moral culpability of the offender with the offensiveness of the materials. As such, the first accused’s “particularly vile remarks”, which provoked a widespread and virulent response and sparked of the slinging of racial slurs at Chinese and Malays, was taken to be an aggravating factor.

In Ong Kian Cheong, Neighbour D.J. stated that while the faithful have desires to profess and spread their faith, the right to propagate an opinion cannot be unfettered. His Honour found that both the accused persons, by distributing the seditious and objectionable tracts to Muslims and to the general public, clearly reflected their intolerance, insensitivity and ignorance of delicate issues concerning race and religion in Singapore’s multi-racial and multi-religious society. Furthermore, in distributing the seditious and offensive tracts to spread their faith, the accused persons used the postal service to achieve their purpose and so were shielded by anonymity until the time they were apprehended. There is no doubt that this must have made it difficult for the police to trace them. In view of the facts and circumstances, his Honour found that custodial sentences were warranted for both the accused.

A final point of observation is Magnus S.D.J's caution that the sentence in Koh Song Huat Benjamin is confined to its peculiar facts and that the court will not hesitate to impose appropriate salutary and stiffer sentences in future cases.

Comparison With Other Legislations
There is an “intricate latticework of legislation” in Singapore to curb public disorder, and it is arguably to give effect to the legislative intent of configuring an overlapping array of arrangements and to leave the choice of a suitable response to prosecutorial discretion. The Sedition Act plays its part by criminalising the doing of any act having a seditious tendency, or the uttering of any seditious words. The Maintenance of Religious Harmony Act (“MRHA”) is another piece of this legislative jigsaw. It was introduced to ensure that adherents of different religious groups exercise tolerance and moderation, and to keep religion out of politics. Professor S. Jayamukar, then the Minister for Home Affairs, stated that the MRHA takes a preemptive approach and can be invoked in a restrained manner to enable prompt and effective action. This contrast with the punitive approach of the Sedition Act is manifest in the different nature of liability upon a violation of the statutes. While an offence under section 4 of the Sedition Act carries criminal liability, the MRHA imposes a restraining order and only attaches criminal sanctions upon the offender if he contravenes that order.

While the MRHA is meant to efficiently quell mischiefs of a religious nature, the Sedition Act encompasses a broader category of mischief. A plain reading suggests that section 3 of the Sedition Act governs racial and class activities. However, it has been argued that the mischief of the MRHA is subsumed under the Sedition Act. This is because Magnus S.D.J in Koh Song Huat Benjamin employed the phrases “anti-Muslim” and “anti-Malay” interchangeably and suggested that the Sedition Act governs acts which connote anti-religious sentiments. It was further observed that unlike the Sedition Act, the MRHA excludes the word "tendency" and this means there must be evidence that the person has "committed", or "is attempting to commit", instead of a mere tendency to commit. Another statutory counterpart to the Sedition Act is section 298A of the Penal Code, which was introduced to “criminalise the deliberate promotion by someone of enmity, hatred or ill-will between different racial and religious groups on grounds of race or religion.” Unlike the Sedition Act, section 298A includes the additional requirement of knowledge and excludes a qualifying proviso which decriminalises certain bona fide acts. Nonetheless, even though section 298A is regarded as an alternative to the Sedition Act for the prosecution, it should be clarified when section 298A, instead of the Sedition Act, should be employed.

=Notes=