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Why Gopalan Nair should not be further remanded

Gopalan Nair was a Singapore dissident who took up United States citizenship.

Gopalan Nair was an ex-Singaporean who continued to lambast and critique the ruling party and its establishment.

Gopalan Nair was a man who could not turn his back and pretend to no longer see but he returned to Singapore to offer moral support for SDP, Dr. Chee Soon Juan and Ms Chee Siok Chin in the PM & MM’s defamation suit’s assessment of damages trial against them.

Gopalan Nair was personnally incensed by what he witnessed in Court. He expressed the same on his blog.

Gopalan Nair was picked up by officers from the Central Police Division on the night of 31st May 2008, Saturday at about 9pm.

Gopalan Nair had been held for 36 hours and questioned during that period. The Prosecution had [presumably found enough evidence] and found it it fit to prefer a charge against him of insulting a public servant under Section 13D(1)(a) of the Miscellaneous Offences (Public Order & Nuisance) Act.

Gopalan Nair was prior to my appearance in the action on 2nd June 2008 allegedly reported in the press to have sent the email to the Honourable Attorney-General, the Honourable Solicitor General, and the Honourable Justice Belinda Ang Saw Ean.

The Official charge sheet did not state the charge to be sending 3 emails. The charge sheet in my hands stated only an email to Justice Belinda Ang Saw Ean.

The Police presumably acted because someone had complained of receiving the allegedly offending email.

The Police acted swiftly against Mr. Gopalan Nair on night of 31st May 2008. They had a good 36 hours with him to find out how many emails he had sent.

On 2nd June 2008, the prosecution comes to court appearing only after two stand downs to request for a further remand for 7 days ostensibly for further investigation, collection and preservation of evidence.

As Defence Counsel, several questions immediately sprung to my mind:-

1. What sort of preservation and collection of evidence had to be done with Mr. Goplan Nair kept in custody?

Unless of course Mr. Gopalan Nair’s liberty outside custody would [according to the prosecution] miraculously make the electronic footprint of Mr. Nair’s alleged emails to the victims disappear into thin air.

Unless of course Mr. Gopalan Nair’s liberty outside custody would prevent the Singapore Police Force from running a query through the entire Government Network as to who else was allegedly insulted [sorry now according to the press its threatened] by the said Gopalan Nair.

Unless of course Mr. Gopalan Nair’s liberty outside custody would prevent the relevant investigation officers from doing their work to frame fresh charges – which basically means typing out the charge sheet, administering the S.122(6) cautioned statement, taking the S.121(5) long statement. One would wonder how the Great Gopalan Nair, however great he was, would be able to do so when the police officers are safely and securely protected the the Great Police Cantonment Complex.

One would wonder why is it that a single dissident can cause so much fear within a 1st world administration.

2. What else is there to investigate that required Mr. Gopalan Nair to be kept in custody?

Mr. Gopalan Nair’s passport was taken by the police – without a court order. It is classic in Singapore’s instance for the police to overstep their powers to detain the passport of an accused person and thereafter upon the request of the Defence for the passport to be released, the court sanctions the detention of the passport by acceding the impounding of the passport via a request from the prosecution. Alternatively, the prosecution requests for an increase in the bail amount as a condition to releasing the passport which the Court will usually sanction.

In this case, I did not ask for Mr. Gopalan Nair’s passport to be released.

3. Was there anything preventing the Court or the police from mandating his reporting attendance and cooperation at the police station for assistance in investigations? No.

In view of the above, i made the following submission following half an hour in the Legal Resource Library of the Subordinate Courts.

The prosecution relies on Section 198 Criminal Procedure Code to make the application to further remand the Accused.

Section 198 of the Criminal Procedure Code reads as follows:-

(1) if from the absence of a witness or any other reasonable cause it becomes necesary or advisable to do so the court may, by order, postpone the commencement of or adjourn any inquiry or trial on such terms as it thinks fit for such time as it considers reasonable and may, if the accused is not on bail, by a warrant remand the accused in such custody as the Court thinks fit.

The Explanation provided at the end of the provision stated as follows:

“If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained my a remand this is a reasonable cause for remand.”

The Section 198 is found in Chapter XXII of the Criminal Procedure Code. A chapter that was titled “General Provisions as to inquiries and trials”. It was clear that the provisions in that Chapter pertained only to inquiries and trials. In fact, the very mention of “… from absence of witnesses and any other reasonable cause … ” supports that view.

The Explanation at the end of Section 198 states “if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and ….. ” 

The explanation for reasonable cause requires evidence to be taken. The question is – when was evidence ever taken in the proceedings before the court today? There is in fact no evidence before the court and no evidence taken by the Court in respect of the proceedings today. Furthermore the question of evidence obtained cannot be referring to evidence obtained by the prosecution or the police during investigations because section 198 which the prosecution refers is not found in the Chapters that relates to police rights and and powers of investigation or even the question of commencement of proceedings in the Magistrate’s Courts which is the case here.

Instead the section is found in the Chapter that relates to General Provisions relating to inquiries and trials.

Proceedings in Subordinate Courts are often referred to Summary Trials. As opposed to proceedings in the High Court which would have preliminary inquiries held. The fact of absence of the preliminary inquiry (where evidence and statements are obtained) in the Subrdinate Courts proceedings is what which qualifies them as summary trials.

The “inquiries and trials” stated in Section 198, the “trials” should referred to the trial proper where evidence is taken and witnesses are called both in proceedings in the High Court and the Subordinate Courts.

There is no evidence taken and today is not a situation where witnesses are mandated to attend.

The proceedings today are neither an inquiry or a trial.

The Prosecution DPP Francis Ng referred to Section 180, Section 186 CPC to support his stand that Section 198 applied to the situation at hand.

My reply was that Section 180 sets out the procedure and sequence of events to be conducted in a trial and does not at all relate to administrative hearings like the commencement of proceedings. Even though the charges are read out to the accused today, if the accused claims trial, the charges will be read out to him again and the plea taken at the trial proper. Therefore Section 180 merely sets out the sequence of things to take place in a trial.

The Prosecution further submitted that the wording of Section 198 was drafted suffciently wide to allow for sufficient flexibility in interpretation.

The Prosecution submitted that the police had little time to conduct investigation and they needed to further remand the Accused for the purposes of preservation and collection of evidence. It was submitted that the Investigating officer was present in court and was ready able and willing to offer formal evidence in to comply with Section 198.

The Court asked whether or not the defence would want to take formal evidence and hear Investigating Officer submit on the evidence obtained and the need to remand the Accused.

In reply, on the aspect of freedom and liberty of the individual and the denial thereof, it is not right to allow for flexible interpretation of the law to deny the right of freedom of an individual. The Accused should be released on bail and there is nothing stopping an order being made that the accused attend at the relevant police station for assisting in investigations even when he is released on bail.

In reply, I replied that it there was neither need nor reason to hear the investigating officer as it was my position that the Court in the situation does not have the power to order the remand of the Accused under this section.

The Court then proceeded to ascertain from the Prosecution that the Investigating Officer was able to testify as to the evidence obtained and the need to further remand the Accused for further investigation. The Court then proceeded to ascertain from the prosecution that further remand was needed in order to collect and preserve evidence relating to the current charge and possible new charges. The Court then proceeded to find suffcient reason to raise suspicion and grants order for remand for 1 week to conduct further investigations.

The Order for remand for next seven 7 days being given. Next mention fixed for 9th June 2008 Court 23 at 9am.

The Accused, Mr. Gopalan Nair, was arrested on charge of insulting a public servant. He was arrested and his passport has been retained by the police.

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June 4, 2008 - Posted by | Life, Politics

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