Given a choice of being faced with someone intent on an act of physical violence and being inconvenienced by someone mounting a peaceful protest, I think most of us would consider the first a greater threat to our sense of security.
In Court No. 4 of the Subordinate Courts Complex today (21 July 2011), I had cause to wonder if the state might think differently. Does it view protest more seriously than violence? If so, how does law serve the true interest of the public?
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Upon their names being called, a slim young man and a pint-sized woman, fashionably dressed in black, were ushered by policemen from their seats at the back of the court room into the dock. There they joined Yang Wei, a Chinese national who minutes earlier had been led there in handcuffs, wearing a T-shirt with “Prisoner” stencilled across the back.
With District Judge Low Wee Ping saying he would deal with the young man first, he was asked to stand.
In the echoey court, it was hard to catch all that the prosecutor and defence lawyer said, but it appeared that the accused had pleaded guilty to Section 322 of the Penal Code at a previous hearing, and that today would only be about sentencing. Even so, the prosecutor recounted the key facts of the case in order to establish the gravity of the offence. Section 322 is for voluntarily causing grievous hurt, and comes with a maximum sentence of ten years jail with the possibility of a fine and caning.
He had apparently gone to a coffeeshop with one other guy and the girl to participate in an affray. Unlike the other guy (if I heard the prosecutor correctly), the young man had no demonstrable grievance with anyone in the coffeeshop; it appears he went there to help his friend in the fight. In the course of it, he used a broken beer bottle as a weapon, and one of the two victims suffered a bleeding wound near his eye. The prosecutor stressed that his participation in the fight was premeditated.
His defence lawyer offered little by way of mitigation, except that he had no previous conviction and he was remorseful.
The judge asked the prosecution why the accused faced only one charge when there were two victims. The prosecution could not explain it except to say that the investigators must have had their reasons. The young man was then sentenced to four weeks’ imprisonment.
The girl was also in court for the same incident, likewise facing a charge under Section 322 of the Penal Code. In her case however, two factors stood out: she was still a minor, and she had a previous conviction for theft, for which (if I heard correctly) she had been given two years’ probation. The prosecution recommended that she be further considered for probation for this incident and the judge agreed. He set an August date to hear a report about her suitability for probation.
The two were then led away from the dock, leaving Yang Wei there to hear his case taken up next.
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This 27-year-old construction worker from China made the news on the morning of Monday, 4 July 2011, when he went to his employer’s worksite in Changi South, climbed a 30-metre tall crane and refused to come down till he was paid what he felt he was owed. (Straits Times, 7 July 2011, Worker charged over crane stunt in pay protest. Today newspaper, 7 July 2011, Disgruntled worker charged with trespass, by Alvina Soh)
The police and officials from the Ministry of Manpower (MOM) were called, and an MOM officer had to climb up to negotiate with him. A company representative also went up with $5,000 cash in hand.
After being persuaded to come down (about two hours later) he was charged with Criminal Trespass under Section 441 of the Penal Code. The maximum penalty specified by the statute is 3 months’ jail or a fine of up to $1,500 or both.
At a previous hearing on 14 July, Yang had pleaded guilty, so this hearing on 21 July was for sentencing.
Yang’s defence counsels, a three-man team led by Gregory Vijayendran from law firm Rajah and Tann working on a pro bono basis, submitted a written mitigation plea comprising more than 60 points on the morning of the hearing. It pointed out that Yang was suffering from “overwhelming emotional stress” arising from “deprivation of monies owed to him”. He had felt that his employers were unfairly withholding what was due to him amounting to about $5,000 comprising unpaid sums from overtime work, leave pay, deductions for airfare, the cost of which should have been the employers to bear, and medical bills he had to pay himself when it was the employer’s responsibility.
(Defence counsel did not mention, at least not verbally in court, that exacerbating the issue in Yang’s mind, was that MOM officials whom he had approached for assistance had not only been unhelpful, but rude to him. Yang did not think he would make any headway if he relied on MOM.)
He was also under severe stress due to family circumstances, said his lawyers. His mother had suffered a brain haemorrhage with no prospect of recovery. His own matrimonial situation was deteriorating and he was the sole breadwinner for the family.
Furthermore, his own relationship with his employer had gotten off on the wrong foot. “He came to Singapore in June 2010 on the basis of certain statements by recruiting agents” that there’d be a proper contract made out under Singapore law. But when he arrived, he was told by the employer that “there’d be no contract, and that if he was unhappy, he could go back.” This was not possible, since, having paid his recruiter, he was starting off from a position of debt.
As for the incident itself, defence lawyers argued that although Yang had transgressed the law, he caused no damage. “He did not go there to damage or destroy equipment. In essence it was a peaceable protest.”
Defence lawyers asked the court to consider a light penalty, perhaps just a fine.
At about this point, the judge asked who now had the $5,000 that was offered to him at the top of the crane. Did Yang have it? Did he take the money? Defence counsel told the court that he did, though as with all the personal possessions he had on him at the time of arrest, it was being kept by the police (or prison authorities?) for the duration of his sentence.
Then the judge said something else to defence counsel which I couldn’t catch, but piecing together what I heard afterwards, I believe he said something to the effect that at this point, having money to go home with was the most important concern for Yang Wei, and that if counsel pressed for a fine, it might not be in his best interest.
When it was the prosecutor’s turn to speak, Deputy Public Prosecutor Grace Lim argued that the court should be imposing a deterrent sentence. Calling what he did “reprehensible conduct”, she said Yang had “proper legal recourse through MOM. . . and therefore should not do what he did.” Police resources were utilised that morning, resources “that could have been better deployed elsewhere”.
“A strong message needs to be sent to all workers in Singapore that they should not resort to such acts,” she told the court. It would be a “dangerous precedent” if the court did not impose a stiff custodial sentence. “Employees can threaten disruption if there’s a dispute” and it would be “no good for the climate of employment here”.
I was disappointed that no one reminded the court that labour strikes are considered legitimate tools in many countries.
The prosecutor then brought up another case for comparison in order to guide the court in sentencing. Zhao Er Hui, 32, made a complaint to MOM in late March 2009 about salary arrears, but on 1 April, after a meeting at the ministry, he went up to the roof of the seven-storey building instead of leaving. There he called his employer and the police, threatening to kill himself by jumping off. He was charged for Criminal Trespass and sentenced to ten weeks’ jail (Straits Times, 26 May 2009, Chinese worker jailed for attempted suicide, by Elena Chong).
In the light of this precedent, Lim asked the court to impose eight weeks’ imprisonment on Yang.
Vijayendran countered that Zhao’s case had a key difference from Yang Wei’s. Zhao used emotional blackmail by phoning the employer and the police and threatening to jump. Yang, on the other hand, merely sat in the cage atop the crane and refused to move.
In the end, the judge sentenced him to five week’s imprisonment, backdated to when he was first charged, on 6 July 2011, since when he had been in remand. With one-third remission for good behaviour, he would have to serve a total of about 23 or 24 days, which means he should be released on or around 29 July. He will be deported immediately. I’m told that his airticket to Beijing has already been bought.
See also Worker jailed five weeks for criminal trespass, by Shaffiq Alkhatib, Channel NewsAsia.
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Compare the two cases. A young man with no prior conviction, in the company of others and armed with a broken beer bottle, attacks two other persons with whom he had no demonstrable grievance. One victim is injured. The assailant is given four weeks in jail.
Another man, in his twenties, also with no prior conviction, mounts a lonely protest, but makes no threat to anyone else. He is given five weeks in jail even though he had plenty of demonstrable grievances that argue for mitigation.
This is not to say the judge was capricious. He was careful to ask lawyers in the courtroom to raise comparable cases, so that he could consider them and apply the principle of parity in sentencing. He himself was sympathetic to Yang’s situation. But the problem is that considerations of parity in sentencing only apply among cases of a similar nature prosecuted under the same or similar laws. In the fighting case, judge and lawyers referred to other fighting cases. In the protest case, they referred to other protest cases that involved trespass.
It seems to me that perhaps over time, there has been creep. Cases involving violence have generally attracted lenient sentences while those involving protest have attracted tougher ones, and when the legal profession only considers sentencing within each separate stream of offences, it perpetuates this disparity. Yet, the reasonable person can see that parity considerations conducted exclusively within offence categories is too legalistic by half. There is such a thing as moral comparability, and the two cases today appear to fail this test.
Why has creep occurred? This is a question worth discussing. The obvious thing that comes to mind is that we have a state that lays great store by preserving the dignity of itself, its officers and such other sectors (e.g. employers) which it considers valuable. Even if the state’s processes (e.g. dispute resolution in the Ministry of Manpower) are dysfunctional, even if favoured sectors behave less than at their best, it tends to overlook them. But come the slightest resistance, protest or defiance, especially from its social inferiors, it responds with a heavy hand. Built case by case, the sentencing norm is pushed up.
In short, we have created a political culture where insulting the self-assigned status of rulers and their power structures is viewed more seriously than mayhem on streets and in coffeeshops.
Let me mention a third case. Alan Shadrake published a book in which he argued that the independence and impartiality of our judiciary was questionable. He fought no one with a broken beer bottle. He caused no disruption to any worksite by climbing a crane. He was sentenced to six weeks in jail. And fined S$20,000.