CNA Explains: Were the Singaporeans in pro-Palestinian procession case acquitted due to 'ignorance of law'?

SINGAPORE: Three Singaporeans were acquitted on Tuesday (Oct 21) of organising a procession to publicise a cause of solidarity with the Palestinian people.

The prosecution has said it will appeal against the verdict.

What were they charged with?

Ms Mossammad Sobikun Nahar, 26, and Ms Siti Amirah Mohamed Asrori, 30, had an identical charge under the Public Order Act, which accused them of organising a procession publicising the cause. The procession took place along the perimeter of the Istana, a prohibited area, bounded by Orchard Road, Buyong Road and Cavenagh Road between 2pm and 3pm on Feb 2, 2024.

Ms Annamalai Kokila Parvathi, 37, was accused of abetting by conspiring with the two women and others to organise the procession.

How did they contest the charges?

The women were defended by Mr Derek Wong and Mr Uthayasurian Sidambaram from Phoenix Law. At trial, they argued that what happened that day was not a procession.

Instead, they said Ms Amirah and Ms Sobikun had organised an activity to deliver letters to the Istana, not to publicise a cause of solidarity with the Palestinian people.

The defence argued that Ms Annamalai was not an organiser and did not assist in the organising of a procession.

Lastly, they argued that the trio would not have reasonably known that the route taken, from the Plaza Singapura mall to the Istana's rear gate, was a prohibited area.

What was the judge's decision?

District Judge John Ng stated that the offence in each charge faced by the three women was "not a strict liability offence". 

A strict liability offence refers to an offence where the prosecution does not need to prove the defendant's intent or mental state, and need only prove the fact that they committed the prohibited act.

Because it was not a strict liability offence, the prosecution was required to prove both the "actus reus" or guilty act and physical element of the case, and the "mens rea", meaning a guilty state of mind or mental element of the case.

Judge Ng found that the prosecution had established that the "procession" as defined in the Public Order Act (POA) had physically taken place, through witness testimonies and video footage.

He also found that Ms Annamalai had assisted in the procession and would be considered under the POA to be an organiser, although the other two women were the principal movers behind conceptualising and implementing the event.

However, Judge Ng disagreed with the prosecution on the "mens rea" or guilty state of mind requirement - basically, whether the women ought to have known that the route they took was within a prohibited area.

Judge Ng said it was a fact that the route is within a prohibited area, as it had been announced as such in a prohibited areas order.

But he rejected the prosecution's argument that the women ought to have known it was a prohibited area simply because the order in question had been published in the government gazette.

Judge Ng said the suggestion by the prosecution would have the effect of making the offence a strict liability offence, which "did not seem reasonable" and would contradict the prosecution's stated position that the offence was not a strict liability offence.

"It has to be borne in mind the fact that one of the elements of the offence as particularised in the charge is phrased in terms of the mental element of 'ought reasonably to know'," said Judge Ng.

He said the submission of the prosecution, if accepted as correct, would "render the mental element superfluous or redundant".

Judge Ng accepted the defence lawyers' arguments that the circumstances of the case gave rise to doubts that the women ought reasonably to have known that the particular route they had taken was a prohibited area.

"The route taken was via a pavement regularly used by members of the public," said the judge. "There were no signages or notices to indicate or inform users that the public path was part of a prohibited area promulgated by the minister pursuant to an order under the POA."

He said several similar walks to deliver letters to the rear gate of the Istana also take place, which would not give the women any basis to think that the route was anything other than public access from Plaza Singapura to the rear gate of the Istana.

"I find that the accused persons had an honest and reasonable belief that they were not in breach of any prohibited areas order and it is not reasonable to hold that they ought to have known that the route taken by the group on that day would be within a prohibited area," said the judge.

He acquitted them all, saying that although they had carried out a procession as defined in the POA, they had not known on that day, and were not "reasonably to have known", that the route was a prohibited area.

So is it correct to say they were acquitted because of “ignorance of the law”?

After the outcome was reported, several comments online - including a post by Mr Michael Petraeus, who runs the online platform Critical Spectator - suggested the women were acquitted because of their ignorance of the law.

But as detailed above, this is not what the judge said, nor why he acquitted them.

Mr Chooi Jing Yen, who runs an eponymous law firm, said it was simply not true that the women were acquitted because of their ignorance of the law. 

"The question is whether they ought reasonably to have known that the route they were taking was within a prohibited area. Not whether they knew that it was an offence to be in a prohibited area," he said.

He said this was not ignorance of the law - but ignorance that they were even in a prohibited area.

"To try to give an example that may perhaps be easier to understand: For murder, the question is whether you intend to kill. Not whether you knew that intending to kill is an offence," he said.

Ignorance of the law is not a valid defence, and has been consistently rejected by the courts, said Mr Chooi.

He said this principle originated more than a thousand years ago and is trite in law, referring to something that is obvious and widely known.

Mr Mato Kotwani, partner at PDLegal, said ignorance of the law was not a defence in Singapore to begin with, as a general principle. 

"This means that a person cannot avoid liability simply by claiming they did not know their conduct was against the law," he said.

He said it would not be appropriate to comment further on the submissions made by parties or the correctness of the decision, as the matter could possibly go on appeal.

Are there past cases citing ignorance of the law?

In a 2005 judgment in the case of Lai Swee Lin Linda v Attorney-General, the Court of Appeal said ignorance of the law was no excuse - for both laypersons and legally trained people.

In a 2017 High Court case of Chua Hock James v Public Prosecutor and other appeals, the court stated that if a person is acquainted with the facts amounting to an offence, but does not know that these facts constitute an offence, he is not excused.

Otherwise, that would allow him to set up ignorance of the law as a defence, said the court in its judgment.