“yee shall not post” – the jurisdiction for imposing bail conditions

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An honorable member of the Coffee Shop Has Just Posted the Following:

“YEE SHALL NOT POST” – THE JURISDICTION FOR IMPOSING BAIL CONDITIONS

Post date:
3 May 2015 - 10:43am








Bail

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...

subrathiru
Read the Full Article at https://article14blog.wordpress.com/2015/05/02/yee-shall-not-post-the-ju...


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