Visitor No since 22-10-98
Of pleading guilty and going topless Print E-mail
Sunday, 30 September 2012

Duchess of Cambridge
Taking cover: The Internet was abuzz with news about the topless pictures of the Duchess which were apparently taken recently at a chateau in Provence owned by Princess Margaret’s son, Viscount Linley. — EPA
The Sunday Star
by Roger Tan

Two newsworthy headlines in recent weeks merit some comments.

ON Sept 11 when I was taking a flight at Changi Airport, I came across the news report that a former Singapore prosecutor and crime buster, Glenn Knight, had apologised to former MCA president Tan Koon Swan for wrongly prosecuting him in the Pan-El crisis in 1986 (Koon Swan case ‘a mistake’, The Star, Sept 11).

I thought such a move was rather strange but then I was not able to get hold of a copy of the book, The Prosecutor, at the airport. Now that I have sighted it, some observations should be made.

Among other things, Knight wrote in his book, “He (Koon Swan) was charged in 1985 before Justice Lai Kew Chai and pleaded guilty to the charge. He was also given a two-year jail sentence. And a S$1 million fine, which he immediately appealed ...

“A similar CBT case came up for hearing, and Chief Justice Yong Pung How, who had replaced Justice Wee Chong Jin as Chief Justice in 1990, concluded that I was wrong to charge Koon Swan for the offence which got him convicted. Chief Justice Yong was of the opinion that the section that I had charged Koon Swan with was wrong in law, for we could not charge a person for stealing from a company because as a director, it was not a breach of the law in that sense ...

“In the United Kingdom, such a landmark judgment would have set aside Koon Swan’s conviction, but our jurisprudence does not allow for this, though technically Koon Swan could still have been granted a pardon ... The judgment meant that Koon Swan had been wrongly convicted and he was technically an innocent man.”

Firstly, there are some factual errors. Koon Swan was actually charged and he pleaded guilty in 1986, not 1985. Justice Lai’s decision was delivered on Aug 26, 1986. Apart from the two-year jail sentence, he was actually fined S$500,000, not S$1mil.

Cheam Tat Pang & Anor v Public Prosecutor,  1996, was the case Knight referred to in which Chief Justice Yong held that one could not be charged for criminal breach of trust (CBT) under Section 405 of the Penal Code on the basis that he had contravened Section 157(1) of the Companies Act as in the case of Koon Swan.

However, all that Yong said about Koon Swan’s case was this: “Perhaps the only case where a charge similar to the present ones was proceeded with was Tan Koon Swan. However, as counsel correctly pointed out, the accused pleaded guilty in that case. There were no arguments as to the propriety of the charge.”

Yong did not expressly say what Knight had written that Yong had concluded that the former was wrong to have charged Koon Swan for the offence and that the section that Knight had charged Koon Swan with was wrong in law.

Further, in my opinion, Yong was merely sitting in the capacity of a High Court judge in Cheam Tat Pang, and hence this could not be the pronouncement from Singapore’s highest court, which Yong was its chief.

In fact, Knight also referred to the 1976 case of Tay Choo Wah v Public Prosecutor in which he wrote, “(High Court) Justice (Frederick Arthur) Chua determined that Section 157 applied to any director of the company ...” But in Cheam Tat Peng, Yong expressly ruled that in Tay Choo Wah, the judgment of the High Court contained no reference whatsoever to Section 157, whether in relation to the charge or otherwise, albeit the District Court judge did make reference to it!

Knight also did not elaborate how the United Kingdom jurisprudence would have allowed Koon Swan’s conviction to be set aside. This is just not possible whenever one High Court has interpreted the laws differently. This happens every other day and that is how the law develops through cases decided by judges.

If any mistake has been made, it should be Koon Swan’s decision to plead guilty. His appeal to the Court of Appeal was not against his conviction. That was not possible because he had pleaded guilty. Hence, he appealed against the sentence and this was turned down.

It would, therefore, be a sheer waste of time and an act in futility if he should attempt to seek the pardon from the Singapore’s President against his conviction.

Topless duchess

The other more interesting newsworthy story was the publication of topless pictures of Duchess of Cambridge Kate Middleton by the French magazine, Closer.

A few days after I arrived in London, and shortly after the royal couple had arrived in Kuala Lumpur, the Internet was abuzz with news about the topless pictures of the Duchess which were apparently taken a week earlier at a chateau in Provence owned by Princess Margaret’s son, Viscount Linley.

Even though the couple had obtained an injunction to prevent Closer from publishing more pictures of the Duchess, this was merely a hollow victory. According to The Sunday Times (Sept 23) more than seven million Britons had also seen the pictures on the Internet.

Apparently, bathing topless is the in-thing among the young over here. But it is a different story if a celebrity, what more a future Queen, does it. It was argued that the Duchess did not do it in public, she was sunbathing in a private property. But the conservatives would argue that a woman should only go topless inside her bedroom, with curtains fully drawn.

It would have been unthinkable if the Queen had done it during her teens when Victorian standards of morality prevailed at the time. In those days, a charge of conspiracy to corrupt public morality could have been preferred against the royal couple!

Apparently, it was reported that Prince William’s mother, Diana, had also been snapped topless on a balcony in Spain. But the pictures were never published as the owner of Hello! Magazine, Eduardo Sanchez Junco, reportedly bought all the photos and did not publish them.

But Prince Andrew’s ex-wife, Sarah Ferguson, was not so lucky when topless pictures of her sunbathing at a villa, also in France, were published.

And then there was that embarrassing picture of the American businessman John Bryan sucking Sarah’s toes as she lay by the poolside in 1992. However, this time round, the mainstream British press has exercised great restraint by not publishing the Duchess’ topless pictures although The Sun had earlier argued that it was in the public interest to publish Prince Harry’s naughty pictures taken in a hotel in Las Vegas.

So, the debate between the rights to individual privacy and public interest still rages on. Questions remain whether the Duchess could have exercised more care. After all, if the paparazzi could see her, then her bodyguards and servants could have also seen her topless?

Be that as it may, what the photographer did was a gross invasion of privacy. It was an act of voyeurism. If it is justifiable for the photographer to use long lens to shoot the pictures, then there is also nothing wrong for those who take private pictures from the helicopter or even from the satellites!

As much as I sympathise with the royal couple, I feel they should resort to all means to prevent such a recurrence by availing to all legal remedies to ensure that magazines like Closer and the photographer would pay, and pay dearly, for such a criminal act.

That said, this episode has not diminished my high regard for the Duchess and she is certainly still fit to be a Queen some day!

> This was written when the writer, a senior lawyer, was in London.

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