Thursday, September 02, 2010

No case and dismisal application for TBT on National Day 2008

Related Blog Post on evidence

Event's Blog News 1

Event' Blog News 2 (admitted by prosecution as evidence but absolutely help my defense, Thank You LEEgime!)

Today in court 6 the prosecution case closed for the Tak Boleh Tahan event at Toa Payoh Central KFC held on 9th Aug 2008 National Day.

Most of the defendants had opted not to enter any No Case Submission, while Dr. CSJ made few of them changed their minds from making their own no-case submission to making none. I had given an oral submission for no case to answer, and after hearing that the judge directed to enter further submission on aspects of Participation & Assemblies, as there is dispute and arguments that prosecution and defense (myself) is not on the same page on these aspects.

I had prepared the following written submissions for tomorrow's hearing.

Pse pay attention to the attached application to dismiss the case, and BIG Thank You to Superintendent Deep Singh for his great contributions to make this possible!

Supplement to No Case Submissions Tak Boleh Tahan Case National Day 2008

On Aspect of Assembly:

  1. The Definition of the alleged Activity in evidence:

  • The charge stated the “Tak Boleh Tahan” campaign organized by the Singapore Democratic Party.

  • Exhibit P30-3 which is Singapore Democratic Party's web page noticing public about the event had defined just above that location map:

Date: National Day, Saturday

Time: 12 noon – 3pm

Place: Toa Payoh Central, Blk 190 (outside the KFC restaurant)

Activity: Distributing flyers and walkabout

Dress: Tak Boleh Tahan! T-shirt

  • It is therefore abundantly clear that the participants are limited to those persons who fulfilled the given 3 conditions consisting of PLACE & ACTIVITY & DRESS. Those not fulfilling these 3 conditions given by Singapore Democratic Party which is the alleged organizer stated in the charge, are thus NOT a participant.

  • Accused Yap Keng Ho was on the Stair Case over-looking the Walkway which is about 2 meters above the walkway outside KFC restaurant at the time of 2:33 pm stated in the amended charge, as various evidence showed. The charge stated “at the walkway in front of Blk 190 Toa Payoh Lorong 6” it did NOT include the staircase at all. The staircase is not in anyway a part of the walkway below it. That means Yap Keng Ho have got a proven alibi.

  • Accused Yap Keng Hos' where about at the time of 2:33 pm stated in the amended charge also did not fit the alleged organizer's definition of PLACE for the activity, so he could not have participated.

  • The Activity given by the alleged organizer was Distributing flyers and walkabout, so anyone not involved in distributing flyers and walkabout are not the participants. Accused Yap Keng Ho is not in any way proven to be distributing flyers nor in the walkabout activity. So he has no case to answer because he is not proven to be in any assembly which alleged organizers defined to be distributing flyers and walkabout.

  • The alleged organizer also provided definition of dress code for the activity to be Tak Boleh Tahan! T-shirt for it's participants. Accused Yap Keng Ho is not in any way proven to be wearing any such attire, so he has no case to answer because his dress code did not fit the organizer's definition.

  1. The Group Photo Taking is not a part of the alleged activity:

  • The alleged organizer did not define Group Photo Taking with a banner as part of their intended activity.

  • Any group of citizens should be allowed to take a group photo in a place of public without any infringement of any law.

  • Group photos are commonly taken with banners for example, YOG banner; school banner; tour group banner; church banner etc, a Tak Boleh Tahan banner should not incriminate anyone to be taking photos with it.

  • HI Superintendent had testified that he will not consider that photo taking to be an offense of assembly without a permit under my cross examination.

  • By the time the group photo was being taken, the activity defined by the alleged organizer of distributing flyers and walkabout had already ceased upon DSP Rani's advice, photo taking is another different activity.

  • The 1st May 2008 Tak Boleh Tahan activity did not include a group photo taking either, it indicates that the alleged organizer have no intention to include it as part of the activity they organized.

  • No one doing anything during and after the group photo taking should be deemed as a participant of alleged Tak Boleh Tahan activity, be that standing there for the photo or taking the photo. As long as the is no one distributing flyers or doing walkabout, the Tak Boleh Tahan activity should be deem as ended. And taking a group photo in a place of public is no offense.

  1. The utterance of Tak Boleh Tahan is not part of the alleged activity:

  • The alleged organizer did not provide definition of the activity to be one of uttering Tak Boleh Tahan or anything else. Therefore any such utterance is not intended by the alleged organizer as part of their intended activity, and anyone just only by uttering that is not regarded as a participant of that activity.

  • There is not 5 or more person uttering Tak Boleh Tahan, less than 5 person constituted no offense under the MOA.

  • There is not more than one person uttering Tak Boleh Tahan simultaneously, if 5 or more persons uttered that together at the same place and time, it may suggest an assembly, but the evidence showed this is not the case.

  • There is no evidence of any coherence or planed action or synchronous action to utter Tak Boleh Tahan, any individual exclamations of the very common phrase at the same place & time does not amount to participating in any assembly.

  1. The members of the assembly:

  • The charge defined a definitive group of accused persons making the alleged assembly. Charge had not indicated any uncertainty to members alleged to be involved.

  • When one of the person specified in the charge has an alibi then the entire assembly defined cannot stand because the charge is wrong.

  • Court had asked the prosecution weather they wanted to amend the charge after they rested their case, but the decision of prosecution is that their charge is unchanged, therefore the charges cannot stand.

  • There are clear evidences in many ways showing that the charge is wrong by omission beside wrong inclusion in members of the assembly, up to 8 persons including those who can be identified are not included in the definition of the assembly. These persons fitted the definitions provided by the alleged organizer of the event.

  • Case Law 1: PS1344-1348/2008 (MA317-321/2009) PP vs Chong Kai Siong & others Court 19 DJ John Ng.

  • Case Law 2: PS1522/2008 (MA068 of 2010 & CM15/2010) PP vs Yap Keng Ho Court 19 DJ Toh Yung Cheong

  • In both the above cases, charges had included a Charles Tan Teck Wee to whom summons could not be served and who had not been in Singapore for years, but evidence showed him wearing same slogan T-shirt with some of the co-accused.

  • The definition of members of alleged assembly in the above case highlights the error of this current charge by excluding persons of established identity in the definition of the assembly.

  • The charge must correctly define the alleged assembly for the charge to be correct weather or not some of the persons is not in court to face charge. It was clearly the position of the prosecution that there are many more persons in the assembly which they had intended to charge the accused persons, however the prosecution had failed to define the assembly by omission & not specifying uncertainty in their definition in the charge. Thus the charge is wrong and not truly reflect the facts alleged, and the case is not correctly made out. The case made out by prosecution's own evidence does not fit the charge written and read to the accused persons, no amendment of charge is made to correct this error in law, so the accused need not be called to enter any defense, and should be discharged amounting to acquittal or had the charges dismissed.

On the aspect of Participation:

  1. Prosecution's submission on “Support & Encouragement” by uttering Tak Boleh Tahan cannot constitute to participation.

  • In criminal law it is the act and role that counts, it is clearly distinguished by Penal Code Cap 224 Sec 107 (Abatement), Sec 108 (Abetter), Sec 108A, Sec 108B, Sec 109, Sec 110, Sec 111, Sec 112, Sec 113, Sec 114, Sec 115, Sec 116 & Sec 117.

  • The penal codes showed that a person providing abetting an offense is NOT equally the liable for same offense of the person committing the act, in that the role of abetting an offense is provided by law to be differentiated apart from the role of committing the act itself. Sec 114 provided to distinguish weather abettor is present at scene or not.

  • English words, Participate; Support; Encourage; Sympathize; Consent all carried respective meanings different from one another. Encouragement at most will amount to abatement of an offense, where support depends weather it be moral support or financial support or political support or physical facilitation.

  • Merely by just uttering a common phrase of Tak Boleh Tahan alone, does not even amount to abatement, it is at the very most carrying a factor of sympathy or moral recognition. Unless the prosecution's case could prove the motive and purpose and effects of these utterances, the utterance cannot even connect with the activity which was meant to be distributing flyer and walkabout and which took place at a distance on a walkway below the staircase from the person making these utterances.

  • There is no evidence of any effects of the utterances to indicate it had supported & encouraged anyone to distribute flyer or carry out walkabout, as the group of people dispersed immediately after these utterances. There was no prolonged stay or further activities caused by the alleged support or encouragement.

  • Evidence showed that no utterances of Tak Boleh Tahan was made by anyone as flyers were being distributed and walkabout taking place, or during sales of any items.

  • Strictly defined by the alleged organizer on P30-3 that national day event was organized to distribute flyers & walkabout wearing Tak Boleh Tahan T-shirts. Taking photos or video and uttering anything isn't intended to be nor designated to be part of the event being organized, and thus by taking photos or video or uttering anything did not amount to any participation of the intended activity.

  1. Participation in unlawful assembly is comparable to participation in rioting. Committing the rioting act constitutes to participating in a rioting offense, however an act of just uttering something at the scene cannot constitute to participating in rioting.

  2. Example of theft, one cannot be charged nor convicted for participating in theft of cash by simply just uttering the word “cash”. Unless there is proven effect of prompting another person to steal the cash, or proven motive of doing so, there is no crime of abatement disclosed.

Application to dismiss charges

Cap 224 Section 79 (Penal Code General Exception)

Act done by a person justified, or by mistake of fact believing himself justified by law
79. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it.


(a) A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons of apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that Z was acting in self-defence.

(b) A, a police officer, is deployed to perform the duty of screening passengers boarding a flight at the airport. A sees Z, a passenger queuing up to be screened, acting suspiciously. As A approaches Z, Z suddenly shouts aloud that he is carrying a bomb and warns A not to approach further. As A draws his revolver, Z suddenly starts to run away. A, after assessing the circumstances of the case, and to the best of his judgment exerted in good faith, believes that Z has a bomb and will set it off. A shoots Z and Z dies as a result. A has committed no offence, even though it may turn out that Z was not carrying a bomb.

(c) A, a police officer, is deployed to perform patrol duty at an underground train station. A receives information from police headquarters that someone is attempting to plant a bomb in the public transport system. The profile of the suspect is also provided. While patrolling the underground train station, A sees Z, who fits the profile. Z is seen carrying a backpack and behaving suspiciously. A approaches Z and orders him to stop. Z suddenly starts running towards a crowd in the station. A, after assessing the circumstances of the case, and to the best of his judgment exerted in good faith, believes that Z has a bomb and will set it off. A shoots Z and Z dies as a result. A has committed no offence, even though it may turn out that Z was not carrying a bomb.

(d) X, the commander of a naval vessel, is patrolling Singapore territorial waters. X receives information that someone may hijack a vessel in order to commit a terrorist act. X spots vessel A which is proceeding at high speed towards a cruise liner. X orders vessel A to stop her manoeuvre immediately and fires a warning signal. Vessel A instead starts accelerating towards the cruise liner. X, after assessing the circumstances of the case, and to the best of his judgment exerted in good faith, believes that vessel A is going to ram into the cruise liner. X gives an order to fire at vessel A. The persons on board vessel A die as a result. X has committed no offence, even though it may turn out that vessel A was not hijacked nor were there any terrorist on board.


Invoking Section 79 of Penal code to the current case:

Tak Boleh Tahan was organized by Dr. Chee Soon Juan by mistake of fact believed himself to be justified by law.

The fact mistaken being that Police Will Continue To Deem Tak Boleh Tahan as Hawking Activity just as indicated by public statement issued by police regarding another identical event of Tak Boleh Tahan held on 1st May 2008 at a location only about 50 meters away from Blk 190.

There is solid evidence to support the fact that HI Deep Singh regarded the activity on 1st May to be of hawking activity instead of an assembly which required police permit, and that he conveyed this decision to his officers as well as police public affairs to issue statement to press about it.

There is evidence offered by Dr. Chee that press had published it, and prosecution is not challenging evidence that this police decision had been publicized.

There is some further evidence testified by HI Deep Singh that there were some other occasions of identical Tak Boleh Tahan activities after 1st May 2008, but not even being investigated by police, even that HI is aware of them.

The series of evidences listed above support that Dr. Chee in good faith believed that Tak Boleh Tahan events can be further continued to be organized without any police permit.

Dr Chee only realized that the police changed their position regarding Tak Boleh Tahan as DSP Rani appeared to warn him that permit is required. The prosecution is not adopting the position that Dr Chee had been otherwise informed by police after their public statement and prior to the National Day 2008 that they would now required Tak Boleh Tahan events to be held with a police permit.

Therefore section 79 is applicable to this case, that the entire Tak Boleh Tahan event on 9th Auguest 2008 was organized by mistake of fact that police will continue to not treat it as an assembly requiring permit. The event discontinued immediately upon notice by police, that no more distribution of flyers nor walkabout took place after the notice.

In accordance with Sec 79 the event on National Day 2008 is no offense, since it was held by mistake of the above-mentioned fact believed to be justified by the law.

The police's changing requirement of permit is the cause, which is not the fault of any defendants at all, whatever their roles may be. The police have the rights to change their requirement, but it is their obligation to inform the organizer of the change ahead of the event. However they only informed Dr. Chee at about 14:35hr when the event scheduled between 1200hr to 1500hr was almost over.

The police is in evidence fully aware of the event and it's schedule and plans as it was publicized and caught attention of police on or before 8th August 2008. However instead of informing the organizer their change of permit requirement, or notifying any member of public not to participate, they arrived at the scene after most part of the scheduled event already took place and lapsed, and then gathered evidence to charge the defendants.

It is very clear that police had acted deliberately on misleading the defendants, and then entrapped them into this case. This is a STING OPERATION of the worst kind.

The charges must therefore to be all dismissed in accordance of Penal Code Cap224, Section 79. I hereby make this application to District Court #6 on 2nd September 2010.

signed : Yap Keng Ho

Sammyboy.Com Thread