Ex ISD detainee Teo Soh Lung issued a note on what to do when hauled up for investigations by the police:
I do not want to get into a debate with Ms Teo regarding this, but one must note that few investigations are the same and the role of each witness or potential suspect, even the ingredients of an offence are very rarely the same. Ms Teo was of course detained under the Internal Security Act by the ISD which provides for detention without trial. That's quite a different cup of tea from a normal police investigation into a criminal matter, which Ms Teo issued the note for, - in this case the investigation of 'an unlawful assembly' by Ms Han Hui Hui, Roy Ngerng and others, under Sec 143 of the Penal Code. Therefore I thought it prudent to write a post about police powers of arrest and investigations in relation to their actions. Clearly the actions of Ms Han and others showed a lack of understanding of the laws and powers of the police. But I must add a caveat, this is only my opinion, you are advised to seek legal advise if you're subject to a criminal investigation. But even in that you must be careful - a lawyer's opinion or advise is normally just that - it's not a judgment or a definitive legal interpretation. Only a judge sitting in a court can make that interpretation. But obviously some things are so obvious that it can be taken as facts.
Retired lawyer Teo Soh Lung issued a note for activists on what to do when being called up by the Police.
1) The Criminal Procedure Code (CPC) Chapter 68
This is by far the most important Law in so far as investigation and powers go. It provides the procedure and enabling power that the Police must use in investigations and prescribes their powers of arrest. Basically the power of arrest boils down to 2 scenarios:
1) a seizable or arrestable offence
2) a non seizable offence.
As it suggests, a seizable offence means the police can arrest without a warrant from a court. The vast majority of offences are seizable. Non seizable offences means the police must get permission from a magistrate (or higher) to begin investigations or to compel the attendance of a suspect. However please note that the Police can arrest you for a non-seizable offence if you refuse to furnish your particulars or give those they believe to be false. The best way is to produce your NRIC or passport. Since this post relates to the alleged offences by Ms Han and others, I'll touch on seizable cases.
The CPC states that when a police officer receives information that a seizable offence is committed in any place, he (or another officer) shall:
17 (1) investigate the circumstances of the case.
17 (2) find or arrest the offender.
But it also allows him not to proceed further if the case is not of a serious nature. That's why sometimes when you make a complaint, the investigation doesn't proceed or proceeds at a snail's pace. Eg: Someone shouting at the top of his voice under you block. That could be disorderly behaviour - a seizable offence, but the police on arrival may decide not to arrest him or investigate further after issuing a warning.
Section 19 details that an investigator must record every aspect of his investigation, including the places he visited. So when Ms Han stated the police visited her at midnight, the officer issuing the notice would have recorded the time.
Looney Fringe Han Hui Hui's ignorance and refusal to follow the Law has brought a whole lot of trouble to a number of persons and herself.
Next we go to Section 21 - the notice issued to Ms Han and others. They were asked to attend Central Division as 'witnesses.' Let's look at the timeline again and the options open to the Police.
1) The NParks issues a permit with conditions to Ms Han and the Looney Fringe.
2) The permit comes with clear conditions:
Clearly the permit states there are conditions and a requirement to comply with the respective sections and regulations under the Parks and Trees Act (Chap 216) and any such terms as the Commissioner of Parks (CoP) may impose. It also states that Hong Lim Park is NOT exclusive to just 1 permit holder and that the CoP may cancel or revoke any permit at ANY time without giving prior notice for any breach or non-compliance, or if in his opinion the activities of the permit holder or person(s) cause discomfort or inconvenience to other park users. Now tell me in any normal layman's terms did the actions of the Looney Fringe cause inconvenience or discomfort to the organisers and persons attending the YMCA event? Ms Han wanted 'exclusive' use of the whole park and was disallowed by Mr Chia and he did tell her she was in breach of the conditions and he would revoke the permit if she persisted. So to carry on:
3) The permit was revoked or cancelled and Ms Han warned accordingly
4) She ignores and causes discomfort to the YMCA attendees.
5) NParks investigates and notifies the Police.
6) It's open to the Police under what sections they want to investigate/classify this report. They chose Section 141 of the Penal Code - Unlawful Assembly and punishable under Section 143. This is a seizable offence.
7) Under the CPC, the Police could arrest Ms Han and others, but instead chose to request their attendance as 'witnesses' to the incident and to provide their statements.
8) Section 22 of the CPC states the person is obliged to answer questions whether or not he/she will be charged for it
9) After taking statements and reviewing the evidence, the Police will refer the case to the DPP
10) Either on their own or in most cases with the approval of the DPP, decide to either proceed on the original classification or on a different charge or drop the matter.
11) Enforce the decision by arresting the accused and charging him with the offence. Or issue a warning and not charge him in court.
Powers of Arrest
Let's say Ms Han foolishly decided to play hardball and refused to attend the station as a witness. Based on the statements of others and the evidence gathered - the police who also have their own videos, may decide to invoke Section 17 and arrest her and others. Section 64 provides the police to arrest without a warrant a list of offences, in her case the following subsections apply:
a) has been concerned, reasonably suspected or credible information given of being involved in an arrestable offence.
j) commits a breach of peace in the presence of a police officer.
Courts can issue arrest warrants, but usually such warrants are issued when an accused person fails to attend court (absconds). That warrant is for the failure to attend court, that is separate to charge you are facing. You can be 'wanted by the police' for a seizable case, they don't need an arrest warrant by court to arrest you for that. Your name will be entered into the Police Gazette and listed in the 'stop and detain list' of police computers.
Power of Search to Arrest Persons and Powers of Search generally
Alex Tan Zhixiang is an associate member of the Looney Fringe. He 'flips' his positions more than a prata-man. 1 moment he wanted to be fielded by the SPP, then he joined the Reform Party. He said he'll quit politics and go to New Zealand. Well that failed and now he's back and claims he wants to be an MP and PM. He claims to know the solution to every problem in Singapore, but cannot speak properly, cannot accept differing views and has illusions of self-grandeur. He thinks he's above the law and can ignore a lawful request by a police officer investigating a seizable offence. Well let him try some Looney Fringe antics and see if he can get away with it.
I came across a Facebook post by another member of the Looney Fringe - Alex Tan Zhixiang (who stood as a Reform Party (RP) candidate) who has illusions of grandeur of his own self-importance (he thinks he knows everything and wants to become Prime Minister). He claimed he had installed video cameras outside his flat and would not allow a police officer entry to arrest him without a warrant or search warrant. Well I got news for Alex - he needs to look up Section 77 of the CPC which states:
1) If a Police Officer has authority to arrest (sec 17 provides this) and/or if a person (other law enforcement officers) has a warrant, and believes the wanted person is inside any premises, they can demand entry to the premises.
4) After stating his authority and purpose, the police officer with authority is not given entry, he can break any door, window or use any reasonable means to gain entry to effect the arrest.
CNB officers making an arrest for drugs. Under the Misuse of Drugs Act (Chap 185), they have 'carte blanche powers' to enter any premises to search and effect an arrest.
There are several overlapping Laws and other Acts that provide the police and other officers this power. For example all CNB Officers are 'walking warrants.' They can enter any premises they believe drug activity is taking place or if an offender is therein. In most Acts, the Law provides this 'walking warrant' authority to a 'gazetted or authorised Police Officer' - an Assistant Superintendent (ASP) or higher. The most common ones are the Arms Offences Act, Immigration, Gambling and Kidnapping Acts. Some Laws empower the ASP or Director (of other enforcement agencies) to issue a 'warrant' and designate a junior officer to proceed to make the arrest.
A Police Asst Superintendent (a) or higher are gazetted officers. Meaning their appointments are gazetted in the Govt Gazette. In several laws they possess the powers to enter premises without a warrant both for search and arrest.
Section 78 also provides the Police the power to search the premises of a person detained and to seize evidence. If a search is to be made on a premises not resided by an accused person, there are relevant laws in place that grant police officers this power. A search warrant can be issued by a court or by the Commissioner of Police as the case may be, or by an investigator in arrestable offence - Section 34. Other Laws also empower police officers usually an ASP to lead such a search, based on information received.
What Should You Do?
Ms Teo gives some advise on what to do when faced with the kind of circumstances that befell Ms Han. Well you are free to take her advise, some of which is sound, but others you must tread more carefully. For example she says:
1) Letters need not be physically delivered.
Indeed. Many will receive it via snail mail. However you must ask yourself why will the police come and deliver? They will not do so if you're only a witness. They might just give you a call. The more serious the case or the more serious your involvement in a seizable offence, the more serious they will take it. I mean if you're a witness to a shoplifting, a witness to an armed robbery, a stabbing or if you're the shoplifting suspect, you can expect different degrees of police interaction with you.
2) If you are only a witness with no real involvement in the offence you can expect different degrees of treatment. As Ms Teo says, you can postpone the date, ask for a more convenient time or at a place of your choosing. And of course you can make noise if they come at midnight and refuse to open the door.
3) However if you're the potential accused or prime suspect, that's something altogether different. Let's face it, only you will know the degree of your involvement. If you're a suspect in a seizable offence, don't expect the 'royal treatment.' They can come at any time usually in the middle of the night when you are at your most vulnerable mentally. And you can close your doors all you want, but if it's a serious case, they will invoke the Law and can demand entry as I referred to above. Don't expect the 'softly softly' approach if this is a case of murder, armed robbery, drug trafficking, arm offences or rioting. They'll be coming to break down the door and use force if need be.
4) As for interviews during investigations, you of course have certain rights as Ms Teo suggests. You can ask for a warmer room, refreshments and breaks.
5) You can bring a friend or keep them updated. However do note that the Law allows the Police to examine evidence they think is connected to the case, including your handphone, computer or in Ms Han's case - notebook.
6) Almost always you will not be allowed copies of your statement. Even your lawyer cannot access it unless the prosecution intends to tender it as part of their case. However there's a section (23) which deals with cautioned statements - this is when the police intend to formally charge you with the offence. You will be cautioned and have the charge read to you (or you can read it). You will be told to state your defense in relation to the charge. Here you must ordinarily state what defense you intend to offer, or it will be less likely to be believed in court. A copy will be given to you and anything you say here can and will be used against you in court.
7) Ms Teo suggests you don't sign if no copies will be provided. This is immaterial, Section 22 of the CPC states you must sign. If you don't, it will be still taken as given by you. However do note this your statement, you are entitled to make any amendments or change portions of it by cancelling and signing over it. You can refuse to answer questions, but it will be noted down.
Police Sergeants have the power under law to record caution statements and other powers in investigations. Any admission to a Sgt or above, be it oral or written are usually admissible as evidence in Court, unless you can prove he's lying or acting with malice. Easier said than done.
Wrap Text field:
8) I'll touch a bit on evidence - oral admission can be used against you in court. Of course there's a degree of weight that a judge will apply to it. Any admission to a criminal offence given to a police officer of the rank of sergeant and above is admissible in court. For traffic offences - all admissions to any police officer is admissible. Eg: You are drunk and run a road block - a Police Corporal stops you later outside the vehicle and asks you if you are the driver - you say - Yes. That's admissible. If you are stopped for shoplifting by the shop detective and a Police Sergeant comes to attend the case and asks you if you did it? You say -'Sorry sir' in a symbolic act of admission. In these 2 cases if the officer reduces in writing your actions and words and goes to court and testifies, that is admissible evidence, unless you can prove he's lying or acting in bad faith.
9) False evidence. There's a mistaken belief that you can be charged for giving a false statement as an accused person. Section 22 allows you not to incriminate yourself. You can refuse to give a statement incriminating yourself - that duty is for the police and prosecutor to prove in court. You are not obliged to admit your actions. However if you're not the accused, only a witness and you give a false statement incriminating someone else wrongly and they are subject to arrest and investigation, you can be charged.
Conclusion
Of course you can refuse to cooperate with the police, but it depends on your involvement in the offence they are investigating. Be sensible, you will know more or less your degree of involvement, whether it's you they are after or someone else. You must think carefully and wisely here. If you are a witness, you have no real worries. Normally the police will not go all out after your statement if it's not such a serious case. But if it's a serious matter they'll use the law to compel your attendance.
But if your involvement is on the borderline between witness and suspect, ask yourself whether it's beneficial to play hardball? You may choose to do so, but the police have the right to arrest you based on information and evidence gathered. If you are evasive and unhelpful and it's later established that you were involved in some way, don't expect them to play nice. They may decide they don't need you as a witness and instead decide to charge you.
Samantha Lo who affixed stickers and sprayed graffiti on a sidewalk, escaped with a mild sentence because she cooperated with investigations and took responsibility early on.
Finally if you're the one they are after and it's a seizable case, they have every right to arrest you. Ms Han may complain about the 8 hours, but if they arrested her they can hold her for 48 hours. In such cases where you're the prime suspect, you must consider you options carefully. If you just clam up as you have a right to, they may already have a solid case and throw the book at you preferring the highest charge. But like Samantha Lo (the sidewalk graffiti case), you cooperate and show regret and remorse, they may prefer a lighter charge or give you a warning.
A Notice under Sec 21 (1) of the CPC issued to Roy Ngerng to attend Central Division today. Will follow Ms Han's suit and lead us with a song and dance about the 'horrors' of his interview? Or will he man up, take responsibility and cooperate fully, exonerating others and hope for some leniency with his cooperation?
So in essence it boils down to which scenario you fit. There are around 8 persons called up for investigations in the 'Hecklegate Affair' I believe. Whether the Police or DPP intends to proceed with 'Unlawful Assembly' it remains to be seen. They might lower the charge, however for this offence they would prosecute at least 5 persons. 5 persons acting illegally would constitute an unlawful assembly. So of the 8 or more called up, some played a minor role or did not take an active part. It would be wise for these persons to cooperate and be witnesses, especially those on the borderline between witness and accused.
For the rest who might end up charged, it's better to think wisely now and decide if following the Looney Fringe is beneficial or right. Playing hardball all the way might see you with a criminal conviction. If that can't be avoided then you have to choose between a long drawn legal case which will cost a lot of money, which could possibly result in imprisonment and a plea bargain on a lighter charge or sentence.The time for serious thinking is now. For others who are enthralled by the Looney Fringe's antics but avoided this fate, please bear in mind the law and the extensive powers given to the police before you join them in their antics. Remember ignorance of the Law is not a defense and you cannot complain if you end up on the wrong side of it.
Of course I must also add, if you are innocent of the charge (you obviously will know this), then by all means contest it. Admit nothing. The onus is always on the police and prosecution to prove your guilt beyond a reasonable doubt. If there's insufficient evidence you'll be acquitted or might not be charged. But then again if you're truly innocent, surely it would be logical that you would cooperate with the investigations and show evidence of your innocence? I mean who wouldn't want to cooperate in order to exonerate themselves rather than play hardball, face a court case where you'd have to spend thousands on legal fees to prove your innocence? Unless of course you're part of the Looney Fringe. However in this case revolving around the incident at Hong Lim Park, I believe they have broken the Law, whether the law broken is 'unlawful assembly' or something lesser remains to be seen. But I also believe the Police are on solid ground with their investigations thus far and have operated within the confines of the relevant Laws.
Sir Nelspruit
*The author blogs at http://anyhowhantam.blogspot.sg