High Court dismisses application by activist Kirsten Han to quash conditional warning

The High Court has dismissed an application by freelance journalist and anti-death penalty activist Kirsten Han to quash a conditional warning requiring her to remain crime-free for 12 months.

She was issued the warning on Oct 21, 2022 for contempt of court, over her comments on late-stage death penalty court cases in a Facebook post on May 10, 2022.

In dismissing her application, High Court Judge Kwek Mean Luck said in a judgment issued on Friday that the warning does not have any form of legal effect and does not contain a decision for the courts to quash.

Therefore, it cannot be subject to judicial review by the courts, he added.

In her Facebook post, Ms Han had shared a post by lawyer M. Ravi on death penalty cases, and added her own comments about how the “staggering cost orders against lawyers” who take on late-stage death penalty cases are “acts of intimidation” that deter other lawyers from doing the same.

She had also said: “When we create a climate of fear that deters lawyers from representing death row prisoners, we create an ever more brittle system in which it will become even more likely that wrongful executions and miscarriages of justice will occur.” 

The Attorney-General’s Chambers deemed the post to be in contempt of court, but decided to issue a conditional warning to Ms Han instead of initiating criminal proceedings. It then asked the Singapore Police Force for assistance to convey the warning to her.

After the police processed the request, Deputy Superintendent Seet Hui Li called Ms Han on Oct 11, 2022 to ask her to meet at the Ang Mo Kio Police Division Headquarters the following week, in relation to the Facebook post.

DSP Seet also said that more details would be provided during the meeting, in response to queries from Ms Han.

Ms Han agreed to the meeting, but called three days later to ask for a written letter stating that she was required to present herself at the police station.

To this, DSP Seet told Ms Han that the police had the power to ask her to go to the police station without issuing a letter, but also said she was not suggesting that the police can compel her to do so. After their conversation, she sent Ms Han a letter via e-mail on Oct 19, 2022.

Ms Han then went to the police station on Oct 21, 2022, during which she received the conditional warning.

The warning required Ms Han to refrain from any criminal conduct for 12 months, failing which she may be prosecuted for any new offence she commits along with the offence of contempt of court.

Later that evening, Ms Han applied online for a copy of the first information report (FIR), a document that records information about the commission of a “cognisable offence” for which the police can initiate investigations and make arrests without a warrant.

She followed up on this request via two e-mails to DSP Seet on Nov 2, 2022 and Nov 7, 2022. In the later e-mail, she also said she would commence legal proceedings if she did not receive the FIR by 5pm on Nov 10, 2022.

She was subsequently told by the AGC that no FIR had been filed as the AGC had decided to issue the conditional warning in lieu of prosecuting her. The police’s role was to convey the warning to her, so the police created a case reference number for its internal administrative records, which was cited as a report number in the conditional warning, the AGC added.

“We trust that the foregoing makes clear that there is no basis for your client to bring a claim for production of a non-existent FIR,” said the AGC in its letter to Ms Han’s lawyer.

By then Ms Han had already filed an application in court for a judicial review.

In it, she asked for the courts to quash the conditional warning, declare that the police had no power to compel her physical attendance in order to issue her the warning, and order the police to give her the FIR. 

In a judgment released on Friday, Judge Kwek said the conditional warning does not have any legal effect, and therefore cannot be reviewed by the courts in a judicial review.

He said that the warning does not contain an assurance not to prosecute, and also expressly states that it does not affect Ms Han’s legal rights or interests.

“I thus find that the warning is not capable of altering Ms Han’s legal rights, interests and liabilities. In other words, the warning does not contain a decision for the court to quash.”

On the second request in Ms Han’s application, Justice Kwek noted that the police did not compel her physical attendance at the police station to receive the warning.

Ms Han said she had felt compelled to go down to the police station.

But Justice Kwek noted that she had not pointed to any communication from the police compelling her physical attendance, and also did not tell DSP Seet that she would not go down to the station unless it was mandatory under the law.

In fact, in an e-mail sent by Ms Han on Oct 19, 2022, she had expressed that she was aware that physical attendance was not mandated, added the judge.

As to her third request, for the FIR, Justice Kwek found that there was no FIR prepared over the warning.

Ms Han had argued that the information received by the AGC about her Facebook post, and the AGC’s communications with the police constituted the FIR.

Justice Kwek said that the information first received by the AGC is not considered an FIR.

Also, in this case, the AGC had decided not to order the police to investigate the matter, but to issue a warning instead, he noted. Thus the AGC’s communications with the police on the matter were not meant to set the investigations in motion and did not constitute an FIR, he added.

He dismissed Ms Han’s application and directed both sides to file their submissions on costs within seven days of the judgment.

Source: Straits Times © SPH Media Limited. Permission required for reproduction.

Han Li Ying Kirsten v Attorney-General [2023] SGHC 137

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