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The Singapore Law Gazette

Gag Orders: What’s in a Name?

This article provides an overview of statutory and court-ordered restrictions on publication of information, which are more commonly known as gag orders. With a focus on criminal proceedings, the article considers the extent to which gag orders should protect the identity of a child or young person, victim, witness, deceased, and accused. It proposes guiding principles to balance open justice and the public interest, against the protection of individuals and other legitimate interests. As gag orders detract from open justice, they should be issued judiciously, and cover no more than necessary to serve the ends of justice.

Introduction

  1. In a recent case where victims pushed for a gag order on the accused’s identity to be lifted,1CNA, “Chief Justice orders voyeur from top UK university to be named after 11 victims pushed to lift gag order”. 24 September 2021. the High Court held that gag orders were entirely for the protection of victims and have nothing to do with the benefit of the accused. The Court thus varied the gag order to cover only the victims’ identities, and lifted the gag order on the accused’s identity.
  2. It is timely to consider guiding principles for gag orders, to balance open justice and the public interest against the protection of individuals and legitimate interests. This article will provide an overview of gag orders, with a primary focus on criminal proceedings.

Open Justice Serves the Broader Interests of Justice

  1. Open justice requires public hearings, public delivery of judgments, and free reporting of court proceedings. This allows justice to be properly administered and promotes public confidence.2Iskandar bin Rahmat v Law Society of Singapore (2020) SGHC 40 at (90).
  2. Open justice is well-recognised as a cornerstone of our legal system.
    1. Section 8(1) of the Supreme Court of Judicature Act 1969 (SCJA) and section 7(1) of the State Courts Act 1970 (SCA) provide that the place where court is held is “deemed an open and public court to which the public generally may have access”.
    2. The High Court has accepted that as a general rule, “all proceedings in court are open to anyone who wishes to attend and observe the proceedings”.3Public Prosecutor v MX (2006) 2 SLR(R) 786 at (28). Open justice “requires that decisions by judges in court proceedings be amenable to scrutiny by members of the public”.4Tan Chi Min v The Royal Bank of Scotland plc (2013) 4 SLR 529 at (14)
    3. The Minister for Law has stated in Parliament:5Singapore Parliamentary Debates, Official Report (14 May 2012) vol 89 at col 188 (Mr K Shanmugam, Minister for Law). See also Singapore Parliamentary Debates, Official Report (10 May 2021) vol 95 (Mr K Shanmugam, Minister for Law); and Singapore Parliamentary Debates, Official Report (19 May 2010) vol 87 at col 574 (Mr K Shanmugam, Minister for Law).“Our legal system operates on the principle of public justice. Accused persons are publicly tried. The verdict of the court is publicly announced. Reporting of ongoing proceedings is allowed so long as it does not prejudice the proper administration of justice.”
  3. Where open justice “would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament had made some statutory derogation from the rule”,6Attorney-General v Leveller Magazine Ltd (1979) AC 440 at 450. exceptions to open justice have been recognised. These include restricting public access to hearings;7By holding hearings in chambers (para 13A(1) of the Supreme Court Practice Directions), or in private (s 8(2) of the SCJA, s 7(2) of the SCA, and s 153(1) and (2) of the Women’s Charter 1961). restricting access to court records through sealing orders;8Order 60 rule 4 read with Order 60 rule 2 of the Rules of Court. and restricting access to information through gag orders.

Principles Governing Gag Orders

  1. A gag order may be a statutory restriction or a court-ordered restriction on publication.
    1. Statutory restrictions include:
      1. Sections 84A and 84B of the Children and Young Persons Act 1993 (CYPA) which protect children and young persons.
      2. Section 153(4) of the Women’s Charter 1961 (WC) which protects women and girls who are the alleged victims of certain serious sexual offences.
      3. Section 425A of the Criminal Procedure Code 2010 (CPC) which protects the complainant or alleged victim of a sexual offence or child abuse offence.
    2. Court-ordered restrictions: The Court has a wide discretionary power under section 8(3) of the SCJA or section 7(3) of the SCA to issue a gag order on any witness’ identity. Although the provisions are silent on the test for gag orders, guidance may be taken from other exceptions to open justice e.g. in private hearings and redaction of identifying information. Thus, gag orders should be issued where publication of information would impinge on legitimate countervailing interests,9Of the same genus as s 8(6) of the SCJA and 7(6) of the SCA. to the extent expedient in the interests of justice, public safety, public security or propriety, or other sufficient reason of similar import.
  2. As gag orders detract from open justice, they should be issued judiciously, and cover no more than “necessary in order to serve the ends of justice”.10Attorney-General v Leveller Magazine Ltd (1979) AC 440 at 450. Where the protected person’s identity can be protected “through a less restrictive fetter, a more restrictive fetter will not be imposed”.11GCP (a minor) (suing by her father and litigation representative, GCQ) and others v GCS (2020) SGDC 122 at (15).
  3. With these principles in mind, this article will examine whether and to what extent a gag order should protect the identity of a child or young person, victim, witness, deceased, and accused.

Children and Young Persons

  1. Children and young persons12“Child” means a person below 14 years of age: s 2(1) of the CYPA. For the purpose of gag orders under ss 84A and 84B, “young person” means a person who is 14 years of age or older but below 18 years of age: s 2(1) of the CYPA. receive special protection in two key ways. First, statutory restrictions shield the identity of a child or young person involved in court proceedings.
    1. Section 84A(1) of the CYPA protects any child or young person who is inter alia, the subject of any investigation under the CYPA; arrested for any offence; or the subject of an order under the CYPA.
    2. Section 84B(1) of the CYPA protects any child or young person “concerned in the proceedings, either as being the person against or in respect of whom the proceedings are taken or as being a witness therein”.
    3. Section 153(4) of the WC protects any girl (and any woman) who is the alleged victim of certain serious sexual offences.13The offences comprise ss 354, 354A, 375, 376, 376A, 376B, 376C, 376D, 376E, 376F, 376G, and 377B of the Penal Code 1871 (“Penal Code”).
    4. Section 425A of the CPC protects any alleged victim or complainant of a child abuse offence.
  2. This departs from general free reporting of court proceedings until the Court makes a gag order.14Certain classes of victims also receive such statutory protection, see para 14. Instead, the gag order under the CYPA endures until it is dispensed by court order. The Court can order dispensation to the extent necessary in the interests of justice.
  3. Secondly, in line with the broader impetus to rehabilitate young offenders,15The rationale for the rehabilitation of young offenders has been laid out comprehensively in A Karthik v Public Prosecutor (2018) 5 SLR 1289 at (37)–(42). the CYPA protects the identities of young accused persons.16Section 84B(1)(a) of the CYPA restricts publication of the identity of “the person against … whom the proceedings are taken”, i.e. the accused person. Section 84A(1)(a) of the CYPA protects the identity of individuals who are (i) investigated under the CYPA, or (ii) have been arrested for an offence under any written law. Recognising that disclosure of identity can “negatively affect the recovery process”,17Singapore Parliamentary Debates, Official Report (10 January 2011) vol 87 at col 2102 (Dr Vivian Balakrishnan, Minister for Community Development and Sports). protection of identity commences from investigations18Section 84A(1)(a)(i) of the CYPA. or arrest.19Section 84A(1)(a)(ii) of the CYPA. It continues even after the accused reaches 18-years-old,20Section 84A(1)(b) of the CYPA. and lasts for life.21Singapore Parliamentary Debates, Official Report (3 September 2019) vol 94 (Mr Desmond Lee, Minster for Social and Family Development). However, if an individual re‑offends after attaining 18 years of age, his identity will not be protected for the further offences.
  4. Unlike young accused persons, the identities of adult accused persons are not generally protected. Where gag orders encompass accused persons, this is not for the accused’s benefit, but to protect other persons such as the victim (see below at paras 24 – 27).

Victims

  1. As the High Court noted in Public Prosecutor v BPK [2018] SGHC 34 at [105], it is in “the interests of justice that victims be unafraid to testify in Court against any kind of offence”. Gag orders can be issued under section 8(3) of the SCJA or s 7(3) of the SCA to minimise further trauma to victims and prevent re‑victimisation through unnecessary publicity.22Public Prosecutor v BPK (2018) SGHC 34 at (108) and (110). They form part of the ecosystem of victim protection, which includes hearings in private and measures to prevent victims from seeing the accused while testifying.
  2. Victim protection is especially salient in relation to sexual offences, where media coverage may further distress the “particularly vulnerable” victims.23Singapore Parliamentary Debates, Official Report (19 March 2018) vol 94 (Ms Indranee Rajah, Senior Minister of State for Law). Their identities are thus statutorily protected:
    1. Section 153(4) of the WC protects women and girls who are the alleged victims of certain serious sexual offences.24See endnote xiii. However, though section 153(4) of the WC would have applied in Public Prosecutor v Wee Teong Boo [2019] SGHC 198,25The accused faced one charge under s 375(1)(a) and punishable under s 375(2) of the Penal Code, and one charge under s 354(1) of the Penal Code. As these are listed offences under s 153(1) of the WC, s 153(4) of the WC would apply. the gag order issued was under section 8(3) of the SCJA.26Public Prosecutor v Wee Teong Boo (2019) SGHC 198 at (9). Where a specific statutory restriction applies, parties ought to draw attention to it, and there is no need for the Court to use its residual discretion to issue a gag order.27Unless the gag order goes beyond the remit of the statutory protection.
    2. Section 425A of the CPC protects complainants and alleged victims of sexual offences or child abuse offences. This applies upstream, before there is a police report or a court case, to protect victims from being intimidated or being made to pay a price for making a police report.28Singapore Parliamentary Debates, Official Report (19 March 2018) vol 94 (Ms Indranee Rajah, Senior Minister of State for Law).
  3. Protection can apply even where the victim does not testify in court. In Public Prosecutor v GCK and another matter [2020] 1 SLR 486, the victim was unfit to testify due to serious physical and cognitive disabilities. Her identity was nonetheless protected via a gag order on her name, the accused’s name, the name of the nursing home where the offence occurred, and the name of the eyewitness.

Should a victim’s identity continue to be protected if the accused is acquitted?

  1. This author argues that a gag order on the victim’s identity should not automatically lift upon the accused’s acquittal.29For example, in Public Prosecutor v Wee Teong Boo and other appeal and another matter (2020) 2 SLR 533, the Court of Appeal did not lift the gag order on the victim’s identity after the accused’s acquittal.
    1. The broader public interest in maintaining a gag order persists regardless of individual acquittals. Gag orders protect not only the particular victim in each case, but also guard against other victims being deterred from reporting offences and testifying against their perpetrators.30Public Prosecutor v BPK (2018) SGHC 34 at (110).
    2. There should be parity with other measures to protect victims, which are not contingent upon a conviction. For instance, in private hearings under section 153(1) of the WC can be held when the accused is charged with or convicted of the listed sexual offences.
    3. Acquittals may be for reasons unrelated to the victim,31For example, there may have been issues with the chain of custody of evidence, or the accused may have availed himself of a psychiatric defence. and fairness to the victim requires that he does not lose the gag order’s protection unless his actions warrant this, i.e., if he knowingly provides false evidence.
  2. Under section 425A(2) of the CPC, if the victim is convicted of providing false information or false evidence32Section 425A(2)(a) of the CPC provides that the non-publication restriction ceases to apply if the complainant is convicted of any offence under ss 182, 193, 194, 195, 196, 199, 200, 201, 202, 203, 204, 204A, 204B, 211, 213 or 214 of the Penal Code. on a material point in the complaint,33Section 425A(2)(b) of the CPC. he will lose protection of his identity. Similarly, under section 21(3)(a) of the Prevention of Human Trafficking Act 2014 (Act No. 45 of 2014) (PHTA), an informer’s identity can be disclosed if the court, after a full inquiry, finds he wilfully made a material statement which he knew or believed to be false or did not believe to be true.
  3. The Attorney-General’s Chambers (AGC) will consider investigating or proceeding against an individual where evidence is clear that he may have committed perjury or other serious offences.34AGC Media Statement, “Queries Relating to Outrage of Modesty Case Involving Dr Yeo Sow Nam”, 31 August 2021. In a recent case, a doctor was acquitted after the complainant admitted at trial that she was lying.35CNA, “Doctor acquitted of molesting woman after she admits to lying in court”, 16 August 2021. The defence first applied to lift the gag order on the complainant’s identity, then withdrew this, stating it would reconsider the application if she was charged with giving false evidence. Ultimately, she was not charged. The AGC did not find her untruthful in her allegations against the accused,36AGC Media Statements, “Queries Relating to Outrage of Modesty Case Involving Dr Yeo Sow Nam”, 31 August 2021; “Response to Mr Eugene Thuraisingam’s Facebook Posts on the Outrage of Modesty Case Involving Dr Yeo Sow Nam”, 1 September 2021; and “Response to The Online Citizen’s Article on the Outrage of Modesty Case Involving Dr Yeo Sow Nam”, 1 September 2021. demurring from the defence on the materiality of the inconsistencies in her evidence.37TODAY, “Doctor acquitted of molestation: AGC repeats call for lawyer to ‘explain his conduct’, rebuts claims in TOC article”, 1 September 2021.
  4. In fairness to the victim or informant, a high threshold must be crossed before protection of identity is lost. Section 425A(2) of the CPC requires proof beyond a reasonable doubt that the victim provided false information or evidence, and section 21(3)(a) of the PHTA requires a “full inquiry into the case”. This strikes a proper balance, weighing the interests of the victim and accused. While a gag order protects victims from being deterred in reporting genuine offences, victims should not be protected for reporting false offences – this provides some protection to the accused.

Witnesses

  1. Like victims, if witnesses’ identities are not protected, they may be reluctant to testify for fear of reprisal or distress. Parliament envisages that gag orders for witnesses may be required in a wide range of cases, beyond those involving minors and sexual offences.38Public Prosecutor v BPK (2018) SGHC 34 at (108). The courts thus have broad powers under sections 8(3) of the SCJA and 7(3) of the SCA to issue gag orders for “any witness”.
  2. Some witnesses’ identities receive statutory protection to protect the victim. For example, sections 153(4)(c) and (e)(ii) of the WC protect witnesses’ identities to the extent necessary to protect women or girls who are alleged victims of certain serious sexual offences.39See endnote xiii.

Deceased Persons

  1. In general, there should be no gag order on a deceased person’s identity. The purpose of a gag order – to minimise trauma to the person whose identity is protected – does not apply to a deceased victim. In Public Prosecutor v Teo Johnboy John (Criminal Revision 7 of 2020) (Johnboy Teo), the Prosecution argued that the deceased would not be further harmed by disclosure of her identity, and there was no public interest in a gag order.40The Straits Times, “Court quashes gag order in case of man who killed child”, 17 November 2020.
  2. However, a gag order on the deceased’s identity may be needed to protect other witnesses’ identities, e.g. child witnesses with familial ties to the deceased. Where preliminary investigations suggest this, it would be prudent to apply for a gag order on the deceased’s and relevant witness’ identities pending further investigations. Otherwise, once identification information enters the public domain, as in Johnboy Teo,41The accused’s and deceased’s names had already been published by the media, at the time when a gag order was issued. it may be too late to apply for a gag order. If parties subsequently decide not to call the potential witness whose identity is protected, the gag order can be lifted or varied.

Accused Persons

  1. The interests of justice weigh in favour of publicly identifying an accused person:
    1. Full contemporaneous public reporting of criminal trials is needed for public confidence in the administration of justice, and for informed public debate. In Johnboy Teo, the Prosecution argued that the public has a “continuing and unsatiated interest” in knowing the verdict.42The Straits Times, “Court quashes gag order in case of man who killed child”, 17 November 2020. Without the accused’s identity, media reporting would be disembodied and informed debate about criminal justice would suffer.43In re S (A Child) (Identification: Restrictions on Publication) (2004) 3 WLR 1129 (“In re S”) at (30)–(34).
    2. As a matter of sentencing philosophy, the communicative function of sentencing requires a public answer for crime. As the Prosecution argued in Johnboy Teo, the sentencing principles of retribution and deterrence can only be given their full weight if the accused is identified and “publicly held responsible” for his crime.44The Straits Times, “Court quashes gag order in case of man who killed child”, 17 November 2020.
  2. Therefore, accused persons (apart from children or young persons) should not generally receive protection of their identities. While the Court may exercise its discretionary power to issue a gag order under section 8(3) of the SCJA or s 7(3) of the SCA in exceptional cases, there must be some compelling countervailing interest against publicly identifying the accused. Such interests include the factors enumerated in section 8(6) of the SCJA and section 7(6) of the SCA,45While these factors apply to hearing the proceedings in private, it is the author’s view that similar considerations should apply to gag orders, see para 6(b). The Minister for Law has also noted that a gag order on the accused’s identity may be issued to protect sensitive information relating to national security (see Singapore Parliamentary Debates, Official Report (10 May 2021) vol 95 (Mr K Shanmugam, Minister for Law)), which is akin to s 8(6)(e) of the SCJA and s 7(6)(e) of the SCA. and protecting the victim’s or other potential witnesses’ identities.
    1. As noted by the Ministry of Law, the accused’s identity can be protected “only in cases where revealing the name of the accused could lead to identification of the alleged victim”,46The Straits Times, Forum, “Gag orders imposed consistently – to protect alleged victims”, 11 September 2019. e.g. where there is a familial relationship between the accused and victim. In the “Chin Swee Road death”,47The Straits Times, “Chin Swee Road death: Couple charged with 2014 murder of 2-year-old daughter; child’s remains found in a pot last week”, 17 September 2019. where the victim48As the victim in the “Chin Swee Road death” had passed away, it is open to question why her identity is protected (see para 22 above). One possibility is that the gag order was imposed to protect other potential witnesses to the proceedings (see para 23 above), e.g. a sibling of the victim. was the accused persons’ daughter, the AGC stated that the accused persons’ identities were gagged “to protect the identity of the victim”.49AGC Media Statement, “Sub Judice and Gag Order Reminders on Case of Child’s Death at Chin Swee Road”, 25 September 2019, para 2.
    2. As the target of protection is the victim or witness (and not the accused), measures directly aimed at protecting the victim or witness should be considered first. Such measures include a gag order on the victim’s or witness’s identity, hearing their testimony in private, and redacting or removing their names from court documents. A gag order on the accused’s identity should be issued only where these measures are insufficient to protect the victim’s or witness’s identity.
    3. In addition, where the victim agrees to lift the gag orders imposed for her benefit, the accused (who is incidentally protected) cannot object to the gag order being lifted.50CNA, “Chief Justice orders voyeur from top UK university to be named after 11 victims pushed to lift gag order”. 24 September 2021.
  3. Against this, some argue that accused persons be granted anonymity until conviction,51The Straits Times, “Open justice and anonymity for the accused: Opinion”, 6 September 2021; The Straits Times forum, “Why no gag order on identity of doctors in sex offence cases”, 5 September 2019; and Michael Hor, “The protection of identities in the criminal process”, 20 June 2012, published by AWARE (available at: https://www.aware.org.sg/2012/06/the-protection-of-identities-in-the-criminal-process/). as the presumption of innocence might be defeated by public scrutiny before and during trial. This irreparably harms the accused’s reputation, and acquittals do little to reverse or mitigate this harm.52See e.g. CNA, “The Big Read: Accused persons get no sympathy but long proceedings are tough, more so on those not found guilty”, 19 April 2021. Negative effects of publicity are further compounded in the digital age, where records of a criminal prosecution remain on the Internet forever.53CNA, “The Big Read: The Internet never forgets — ex-offenders struggle for redemption in the digital age”, 2 July 2019. However, as acquittals tend to be reported fairly prominently in the media, this may go some way to mitigate reputational harm.
  4. Extension of anonymity erodes a public, and hence fair, trial, and goes against public interest in the open administration of criminal justice. Instead of contingent anonymity, the better solution is to increase public awareness that a charge is not the same as a conviction, and that an accused person is presumed innocent until he is found guilty by a court of law.54Singapore Parliamentary Debates, Official Report (14 May 2012) vol 89 at col 188 (Mr K Shanmugam, Minister for Law). However, the Minister recognised that this was a “significantly uphill task”.

Should a gag order on the accused person’s identity be lifted upon conviction?

  1. A gag order on the accused person’s identity should not be lifted automatically upon conviction, as the public interest may require that the accused’s identity continue to be protected.55This is the corollary of the position that a gag order on the victim’s identity is not automatically lifted upon an accused’s acquittal, see paras 16 – 19.
    1. If the gag order on the accused’s identity was imposed to protect the victim or witness, the gag order should persist.56Unless the victim or witness has lost this protection by knowingly providing false information against the accused, see paras 17 – 19. In Public Prosecutor v BNO [2018] SGHC 243, given the public interest in protecting the victim’s identity, the High Court rejected the application to lift the gag order on the accused’s identity upon his conviction, as it would be much easier to ascertain the victim’s identity if the accused’s identity was made public.
    2. If the accused is a child or young person, public interest in his rehabilitation continues to apply post-conviction, and the gag order should remain in force (see para 11 above).
  2. However, where there is no public interest in continuing to protect the accused’s identity, the gag order may be lifted upon conviction. In Johnboy Teo, the Court quashed the gag order after the accused’s conviction, finding that it was palpably wrong57Despite the accused’s and deceased’s names having been published by the media, the Magistrate’s Court granted a gag order on their identities. and there was no countervailing public interest justifying a detraction from open justice.58The Straits Times, “High Court quashes ‘wrong’ gag order in case of father who killed two-year-old daughter”, 16 November 2020.

Conclusion

  1. In the words of Jeremy Bentham, “publicity is the very soul of justice”.59Cited in AZT v AZV (2012) 3 SLR 294 at (8). As gag orders detract from open justice, such orders should be issued only where they serve the public interest. Further, in line with the AGC’s vision to make the criminal legal system more accessible and intelligible to the public,60Opening of the Legal Year 2021, Speech by the Attorney-General, Mr Lucien Wong S.C., 11 January 2021. the basis for gag orders could be articulated, to help the public understand why gag orders are required, and to address any public concern that such orders are not issued consistently.61For example, in a case where doctors faced trial for molest charges, a member of the public took issue with how the names of the doctors on trial were published though they had not been convicted at the time, and went so far as to suggest that there was “apparent bias” surrounding the imposition of gag orders: see The Straits Times, Forum, “Why no gag order on identity of doctors in sex offence cases?”, 5 September 2019.
The views expressed in this article are solely the personal views of the author.

Endnotes

Endnotes
1 CNA, “Chief Justice orders voyeur from top UK university to be named after 11 victims pushed to lift gag order”. 24 September 2021.
2 Iskandar bin Rahmat v Law Society of Singapore (2020) SGHC 40 at (90).
3 Public Prosecutor v MX (2006) 2 SLR(R) 786 at (28).
4 Tan Chi Min v The Royal Bank of Scotland plc (2013) 4 SLR 529 at (14)
5 Singapore Parliamentary Debates, Official Report (14 May 2012) vol 89 at col 188 (Mr K Shanmugam, Minister for Law). See also Singapore Parliamentary Debates, Official Report (10 May 2021) vol 95 (Mr K Shanmugam, Minister for Law); and Singapore Parliamentary Debates, Official Report (19 May 2010) vol 87 at col 574 (Mr K Shanmugam, Minister for Law).
6 Attorney-General v Leveller Magazine Ltd (1979) AC 440 at 450.
7 By holding hearings in chambers (para 13A(1) of the Supreme Court Practice Directions), or in private (s 8(2) of the SCJA, s 7(2) of the SCA, and s 153(1) and (2) of the Women’s Charter 1961).
8 Order 60 rule 4 read with Order 60 rule 2 of the Rules of Court.
9 Of the same genus as s 8(6) of the SCJA and 7(6) of the SCA.
10 Attorney-General v Leveller Magazine Ltd (1979) AC 440 at 450.
11 GCP (a minor) (suing by her father and litigation representative, GCQ) and others v GCS (2020) SGDC 122 at (15).
12 “Child” means a person below 14 years of age: s 2(1) of the CYPA. For the purpose of gag orders under ss 84A and 84B, “young person” means a person who is 14 years of age or older but below 18 years of age: s 2(1) of the CYPA.
13 The offences comprise ss 354, 354A, 375, 376, 376A, 376B, 376C, 376D, 376E, 376F, 376G, and 377B of the Penal Code 1871 (“Penal Code”).
14 Certain classes of victims also receive such statutory protection, see para 14.
15 The rationale for the rehabilitation of young offenders has been laid out comprehensively in A Karthik v Public Prosecutor (2018) 5 SLR 1289 at (37)–(42).
16 Section 84B(1)(a) of the CYPA restricts publication of the identity of “the person against … whom the proceedings are taken”, i.e. the accused person. Section 84A(1)(a) of the CYPA protects the identity of individuals who are (i) investigated under the CYPA, or (ii) have been arrested for an offence under any written law.
17 Singapore Parliamentary Debates, Official Report (10 January 2011) vol 87 at col 2102 (Dr Vivian Balakrishnan, Minister for Community Development and Sports).
18 Section 84A(1)(a)(i) of the CYPA.
19 Section 84A(1)(a)(ii) of the CYPA.
20 Section 84A(1)(b) of the CYPA.
21 Singapore Parliamentary Debates, Official Report (3 September 2019) vol 94 (Mr Desmond Lee, Minster for Social and Family Development).
22 Public Prosecutor v BPK (2018) SGHC 34 at (108) and (110).
23 Singapore Parliamentary Debates, Official Report (19 March 2018) vol 94 (Ms Indranee Rajah, Senior Minister of State for Law).
24 See endnote xiii.
25 The accused faced one charge under s 375(1)(a) and punishable under s 375(2) of the Penal Code, and one charge under s 354(1) of the Penal Code. As these are listed offences under s 153(1) of the WC, s 153(4) of the WC would apply.
26 Public Prosecutor v Wee Teong Boo (2019) SGHC 198 at (9).
27 Unless the gag order goes beyond the remit of the statutory protection.
28 Singapore Parliamentary Debates, Official Report (19 March 2018) vol 94 (Ms Indranee Rajah, Senior Minister of State for Law).
29 For example, in Public Prosecutor v Wee Teong Boo and other appeal and another matter (2020) 2 SLR 533, the Court of Appeal did not lift the gag order on the victim’s identity after the accused’s acquittal.
30 Public Prosecutor v BPK (2018) SGHC 34 at (110).
31 For example, there may have been issues with the chain of custody of evidence, or the accused may have availed himself of a psychiatric defence.
32 Section 425A(2)(a) of the CPC provides that the non-publication restriction ceases to apply if the complainant is convicted of any offence under ss 182, 193, 194, 195, 196, 199, 200, 201, 202, 203, 204, 204A, 204B, 211, 213 or 214 of the Penal Code.
33 Section 425A(2)(b) of the CPC.
34 AGC Media Statement, “Queries Relating to Outrage of Modesty Case Involving Dr Yeo Sow Nam”, 31 August 2021.
35 CNA, “Doctor acquitted of molesting woman after she admits to lying in court”, 16 August 2021.
36 AGC Media Statements, “Queries Relating to Outrage of Modesty Case Involving Dr Yeo Sow Nam”, 31 August 2021; “Response to Mr Eugene Thuraisingam’s Facebook Posts on the Outrage of Modesty Case Involving Dr Yeo Sow Nam”, 1 September 2021; and “Response to The Online Citizen’s Article on the Outrage of Modesty Case Involving Dr Yeo Sow Nam”, 1 September 2021.
37 TODAY, “Doctor acquitted of molestation: AGC repeats call for lawyer to ‘explain his conduct’, rebuts claims in TOC article”, 1 September 2021.
38 Public Prosecutor v BPK (2018) SGHC 34 at (108).
39 See endnote xiii.
40 The Straits Times, “Court quashes gag order in case of man who killed child”, 17 November 2020.
41 The accused’s and deceased’s names had already been published by the media, at the time when a gag order was issued.
42 The Straits Times, “Court quashes gag order in case of man who killed child”, 17 November 2020.
43 In re S (A Child) (Identification: Restrictions on Publication) (2004) 3 WLR 1129 (“In re S”) at (30)–(34).
44 The Straits Times, “Court quashes gag order in case of man who killed child”, 17 November 2020.
45 While these factors apply to hearing the proceedings in private, it is the author’s view that similar considerations should apply to gag orders, see para 6(b). The Minister for Law has also noted that a gag order on the accused’s identity may be issued to protect sensitive information relating to national security (see Singapore Parliamentary Debates, Official Report (10 May 2021) vol 95 (Mr K Shanmugam, Minister for Law)), which is akin to s 8(6)(e) of the SCJA and s 7(6)(e) of the SCA.
46 The Straits Times, Forum, “Gag orders imposed consistently – to protect alleged victims”, 11 September 2019.
47 The Straits Times, “Chin Swee Road death: Couple charged with 2014 murder of 2-year-old daughter; child’s remains found in a pot last week”, 17 September 2019.
48 As the victim in the “Chin Swee Road death” had passed away, it is open to question why her identity is protected (see para 22 above). One possibility is that the gag order was imposed to protect other potential witnesses to the proceedings (see para 23 above), e.g. a sibling of the victim.
49 AGC Media Statement, “Sub Judice and Gag Order Reminders on Case of Child’s Death at Chin Swee Road”, 25 September 2019, para 2.
50 CNA, “Chief Justice orders voyeur from top UK university to be named after 11 victims pushed to lift gag order”. 24 September 2021.
51 The Straits Times, “Open justice and anonymity for the accused: Opinion”, 6 September 2021; The Straits Times forum, “Why no gag order on identity of doctors in sex offence cases”, 5 September 2019; and Michael Hor, “The protection of identities in the criminal process”, 20 June 2012, published by AWARE (available at: https://www.aware.org.sg/2012/06/the-protection-of-identities-in-the-criminal-process/).
52 See e.g. CNA, “The Big Read: Accused persons get no sympathy but long proceedings are tough, more so on those not found guilty”, 19 April 2021.
53 CNA, “The Big Read: The Internet never forgets — ex-offenders struggle for redemption in the digital age”, 2 July 2019.
54 Singapore Parliamentary Debates, Official Report (14 May 2012) vol 89 at col 188 (Mr K Shanmugam, Minister for Law). However, the Minister recognised that this was a “significantly uphill task”.
55 This is the corollary of the position that a gag order on the victim’s identity is not automatically lifted upon an accused’s acquittal, see paras 16 – 19.
56 Unless the victim or witness has lost this protection by knowingly providing false information against the accused, see paras 17 – 19.
57 Despite the accused’s and deceased’s names having been published by the media, the Magistrate’s Court granted a gag order on their identities.
58 The Straits Times, “High Court quashes ‘wrong’ gag order in case of father who killed two-year-old daughter”, 16 November 2020.
59 Cited in AZT v AZV (2012) 3 SLR 294 at (8).
60 Opening of the Legal Year 2021, Speech by the Attorney-General, Mr Lucien Wong S.C., 11 January 2021.
61 For example, in a case where doctors faced trial for molest charges, a member of the public took issue with how the names of the doctors on trial were published though they had not been convicted at the time, and went so far as to suggest that there was “apparent bias” surrounding the imposition of gag orders: see The Straits Times, Forum, “Why no gag order on identity of doctors in sex offence cases?”, 5 September 2019.

BA (Oxon), BCL.