Too often, it is viewed by practitioners as a part of procedural law and therefore too few lawyers place a great deal of importance on the fundamental legal underpinnings when dealing with bail.
Ordinarily, it is readily accepted as part of our criminal jurisprudence that punishment is meted out only to those that have been found guilty of a crime. “No punishment unless there is a breach of law” – that is a fundamental principle of the rule of law. In Singapore, our state has chosen to make exceptions to it in the form of detention without trial under the Internal Security Act, for instance.
There is another exception to the principle and it is commonly followed in many jurisdictions as well. Technically, any time served by an individual in prison must be a result of a sentence meted out subsequent to being found guilty of an offence. When a person is held in remand without opportunity for bail, questions do arise as to the right to liberty of the individual.
The approach adopted in the United Kingdom is to consider the bail issue as a balancing of the right of the accused person to his liberty as opposed to the public interest that is to be served in ensuring that the criminal prosecution is carried out without jeopardy. There exists the risk that the defendant may flee the jurisdiction and the ends of justice would clearly be frustrated if that were to happen. (Incidentally, that has happened in that past in Singapore where foreign nationals facing charges have fled before trial.
It is, therefore, not unusual to have a regime for bail that is based on demarcating offences that are not bailable and those that are non-bailable. Serious crimes may be made non-bailable by the legal system in comparison with lesser offences. (There is some room for argumentation as to whether a defendant in a serious offence is more likely to flee than someone facing a lesser charge but I will not explore it here. The ultimate objective in granting bail is to ensure that the attendance of the accused is secured at subsequent mention dates and eventually at trial. A defendant that is perceived by the Court to have better opportunities for leaving the jurisdiction should logically attract higher bail amounts and stricter bail conditions. This explains why someone with no family ties within the jurisdiction and no assets or other vested interests within the jurisdiction is usually subject to higher bail amounts. Impounding of passports is a common measure to prevent the accused from leaving the jurisdiction.
Whilst Singapore’s laws have been inherited from the United Kingdom, there is a serious lack of critical analysis about the rationale for the imposition of bail conditions and any potential constitutional issues that may be triggered by an excessive discretion exercised by the judiciary. If the rationale for bail is to prevent the accused from leaving the jurisdiction, then surely the bail amount and the special bail conditions must be measured in such a way as to meet this objective. If a person is charged for theft and bail has been set and the court intends to impose a further condition such as reporting to the police station, there is some logic in it as there is an attempt to reduce the risk of the defendant fleeing from jurisdiction. Bail conditions referring to bail being revoked if the defendant reoffends during the relevant period could also be justifiable.
The Conditions of Bail in Amos Yee’s case
It appears that Amos Yee has not instructed his lawyer to challenge the bail condition (the original conditions being imposed whilst he was unrepresented). In fact, as it has transpired, he has chosen to breach the condition. His bailer has withdrawn bail. He has chosen to be remanded in custody pending his trial. The issue of the bail condition in this case has now become moot.
But, the precise nature of the bail condition is somewhat worrying. Based on media reports (both MSM and alternative media), Amos was released on bail on condition that he was not to post anything online. Whether the bail conditions were in fact so extensive as to refer to any form or online posting or they were restricted to (a) removing the offending posts and (b) not posting or commenting about the subject matter of the present case and any subject matter related to it (e.g. matters pertaining to religion/religious beliefs). If the bail conditions were restricted in the manner I have stated, it may be justifiable as being similar to situations where a condition of bail in a ‘voluntarily causing hurt’ case is to the effect that the bail will be revoked if the defendant reoffends whilst out on bail.
If the bail condition was so broad as to deal with any post online (example even commenting about some mundane food that he ate), one has to ask the very material question of whether this is an infringement of the Defendant’s constitutional right of freedom of expression under Art 14 of our Constitution. Posting about the food that you have eaten is clearly not an existing criminal offence and it is thus quite disconcerting that a bail condition could relate to restricting one from engaging in a perfectly legal conduct.
Where does the court’s power to impose bail conditions come from? Most lay persons will be surprised to find out that until recently it was not expressly stipulated in any statute. The Criminal Procedure Code does dealt with impounding passports and s.67 read with s.355 could have been said to confer upon the Courts the power to impound passports as a condition of bail. However, there was no express power conferred in the CPC for the imposition of other conditions of bail and the case law had proceeded on the basis of an implied power. The leading authority on this was a Malaysian decision: PP v Dato Mat. Our courts relied on this and a series of Indian decisions which interpret the CPC when it comes to bail powers. (Singapore, Malaysia and India share a common Penal Code and Criminal Procedure Code as a result of our colonial past. Although there have been subsequent amendments in our CPC, the basic framework still remains the same.)
Based on case law, it appears that the power to impose bail conditions (whilst discretionary) is used to secure the attendance of the defendant at trial. Conditions such as requiring mandatory drug testing or reporting at the police station at regular intervals are not unheard of. Amos Yee’s case strikes me as unusual because the bail condition includes a restriction on his ability to post online (on the assumption that it is an absolute restriction).
In 2010, the imposition of bail conditions was placed on statutory footing. It is now found in s.94 of the Criminal Procedure Code which reads as follows:
94. (1) A police officer or the court may impose such conditions as are necessary when granting bail or releasing the accused on personal bond under section 92 or 93.
As the statute states that the conditions “may include”, it is arguable that the list (a) to (d) is not necessarily exhaustive. It may be arguable that other conditions could be imposed. s.94(2)(c) is the condition that is closest to the condition imposed in Amos Yee’s case. As stated earlier, if the condition imposed was to require Amos to remove the offending post or to prevent him from posting other posts that may constitute an offence, then subsection 2(c) will clearly apply. If the condition was so broad as to prevent any posting, the court would have exceeded the statutory authority granted under s.94 to impose conditions of bail.
If any further conditions are to imposed by the Courts that are not stipulated in s.94(2)(a) to (d), then surely such conditions cannot be such as to infringe Art 14 of the Constitution.
The right to free speech in Art14 is not absolute and is subject to restrictions. Art 14(2) reads as follows:
14(2) Parliament may by law impose —
on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence
In the absence of a Parliamentary restriction on the Art 14 right, it does not appear that the Court could claim the jurisdiction to impose bail conditions that run foul of the Constitutional rights of Singaporeans.
(Note: There has been a disturbing trend of certain sites reblogging my posts with their own sensational headline. They have, at least, bothered to attribute the article to me and referenced my blog. But, their sensational headlines can often mislead many lazy readers that don’t bother to read the article and merely form opinions based on the headline. For anyone out there that wishes to do a copy-paste with this article, please avoid sensationalizing this in such a way as to impute any wrongdoing on the part of the court. What I see here is merely a very administrative treatment of the matter by the Court imposing the bail. It is symptomatic of a common perspective within the profession of bail as a purely administrative matter. I trust that the Court would have not imposed the alleged conditions if the Constitutional issue was addressed. Don’t forget that we are working on the assumption that the bail conditions were so broad as to cover all forms of online posting. We have not had verification of the actual bail conditions. Rational discussion please and not traffic-generating sensationalism.)