Gag Orders in Singapore: Whose Identity Can be Protected?
What is a Gag Order and the Purpose of It?
To protect a witness or victim’s identity
A gag order is an order issued by the court to protect the identities of witnesses or victims involved in court proceedings. More often, they include vulnerable persons, such as minors and victims of sexual assault cases.
For example, in 2019, amidst the media frenzy surrounding the alleged murder of a 2-year-old girl whose remains were found in a Chin Swee Road flat, the court issued a gag order to prevent the victim’s identity from being revealed to the public.
Other purposes of a gag order include:
- Encouraging the witness and victim to testify, by guarding them against public scrutiny; and
- Minimising re-victimisation by sparing victims the further trauma of unwanted public scrutiny
Can the accused get the gag order?
Gag orders could also be issued to protect the identities of accused persons, but these gag orders are imposed with the main intent of protecting the victim involved rather than the accused person.
For example, in the case of the Chin Swee Road murder mentioned earlier, the gag order also protected the identities of the 2-year-old girl’s parents who were accused of killing her, since identifying them would have led to the identification of the victim.
If a case does not involve the need to protect a witness’ or victim’s identity, the courts generally will not grant accused persons a gag order. In 2019, a 19-year-old polytechnic student attempted to get a gag order for himself after having been caught with multiple upskirt videos of unsuspecting women.
When making the request, the student said the gag order was required to avoid causing distress to his female classmates, and to protect his parents from the “unwanted spotlight” of his actions.
However, his request was denied by the judge who told him that the revealing of his identity was simply a consequence of his own actions that he would have to deal with.
To protect the identities of parties in a lawsuit
Gag orders can also be issued in civil cases. For example, gag orders are issued in all cases tried in the Family Justice Courts, such as divorces, to protect the identities of the people involved.
Similar to criminal proceedings, gag orders may also be issued on the identities of witnesses involved in civil trials so they can testify without fear of their identity being revealed.
To protect state secrets
A gag order can even be used to protect state secrets, such as in cases where the Official Secrets Act has been violated.
For example, if a case involves presenting as evidence, secret official blueprints, that could prejudice Singapore’s safety if published, the court could issue a gag order to prevent the public and the media from publishing images or copies of the blueprints.
This article will further discuss:
What are the Gag Order’s Effects?
When a gag order is issued, every person, including the media and members of the public, should not publish any information, such as photographs, addresses, and or evidence that could lead to the identification of the person whose identity is being protected.
This is even if such information is detailed in the charge sheets, and is available to the media. Alternatively, such information may be redacted from court documents.
In fact, even the person being protected by the gag order should not contravene it by publicising his/her own identity.
Note that even if a person protected by the gag order has revealed his/her identity, this still does not give anyone the right to publish the person’s identity. A protected person’s identity may be published only if the gag order has been lifted.
Do Gag Orders Apply Only to Non-Public Court Proceedings?
Gag orders can be ordered for both proceedings that are being held publicly and those being held “in camera” or in private (i.e. closed to the public).
Note that for proceedings held in private, the court has the discretion to still allow journalists or other individuals, such as family members of the accused person, to attend the proceedings.
However, these individuals must still abide by any gag order that is issued, and not reveal any details that could reveal the victim’s identity (as mentioned above).
How Can a Gag Order be Obtained?
Parties can apply to the court for a gag order to be issued. Ultimately, however, the court has the discretion to decide whether to grant or reject the application.
Gag orders on the victim’s identity are also compulsory for cases involving certain sexual offences where the victim is female.
Similarly, from 1 July 2020 onwards, information or pictures that can identify young persons who have been arrested for an offence, or who are involved in court proceedings, legally cannot be published.
This protection is automatic and need not be applied for. It applies to young persons aged 14 years old or older but younger than 18, and continues even after the young person turns 18.
How Long Will the Gag Order Last?
In general, gag orders last indefinitely. This is unless the order clearly states a particular expiry date, or the order is lifted by the court.
What are the Consequences of Breaching a Gag Order?
If you breach a gag order issued by the State Courts, for example through posting a photograph of a witness in a trial on Facebook, you can be fined up to $5,000, or imprisoned for up to 12 months or both.
Breaching a gag order issued by either the High Court (whether by its General Division or Appellate Division) or the Court of Appeal, on the other hand, could land you a fine of up to $5,000 or an imprisonment term of up to 3 years, or both.
Re-sharing of information revealing the identity of a protected person
If you have reposted or retweeted a post or tweet which contains information that breaches a gag order, you can also be charged and even suffer the same consequences as the original publisher of the information.
However, it remains to be seen as to how exactly action will be taken when a post becomes viral through multiple different reposts.
Breach of gag order by the protected person themselves
Since a gag order applies to everyone, from members of the public to the media, this technically means that even the person whose identity has been gagged cannot reveal it.
However, it is still unclear whether such a person would face legal consequences for revealing their own identity, as people have previously done so without apparently facing any legal consequences.
When Can a Gag Order Be Lifted?
Gag orders can be lifted in various instances, such as where:
- The identity of the protected person has already been revealed to the public, making the order useless, or where
- The court is convinced that there is no longer any need to protect the person’s identity (such as where the person has passed away).
For example, in November 2020, the High Court overturned a gag order wrongly issued by a magistrate in the case of a man who killed his two-year-old daughter.
Johnboy John Teo killed his daughter in 2019 and was charged with murder on 18 June 2019. Both his and his daughter’s names were featured in the media.
However, on 10 June 2020, Teo’s charge was amended to culpable homicide. Without any directions from the Attorney-General Chambers nor any reason given, a prosecuting officer proceeded to apply for a gag order on the names of both Teo and his daughter five days later.
On 26 November 2020, the prosecution requested that the error be corrected, on the grounds that there was public interest in identifying the offender, and conversely, there was no public interest in suppressing the identity of the deceased victim.
Hence, considering that the victim would not have been further harmed by the disclosure of her identity, and that the granting of the gag order was “palpably wrong”, the gag order on the names of the offender and the victim was lifted.
Lifting a gag order with a unanimous agreement
In particular, a gag order imposed on an accused may be lifted if all victims and/or witnesses involved in the case agree to the risk that their identity may be revealed. However, it is very rare for a gag order to be lifted once it has been made.
In 2021, Chief Justice Sundaresh Menon upheld a lower court decision to overturn a gag order on the name of a student from one of the UK’s leading universities who filmed voyeuristic videos of several women.
Colin Chua Yi Jin had pleaded guilty to seven charges of insulting the women’s modesty, as well as an offence under the Films Act. He had filmed 11 women, mostly during gatherings at his place.
The gag order was initially imposed by a district court to cover Chua’s name as investigations were ongoing into other potential victims who could be related to him.
In 2020, the district judge rejected the prosecution’s request to lift the gag order on Chua’s identity, as only 10 out of the 12 victims had supported the move. However, one of the remaining two victims later changed her mind, and the charge involving the other victim was withdrawn by the prosecution. This meant that the victims involved in the outstanding criminal charges against Chua had now unanimously agreed to the lifting of the gag on Chua’s identity.
On 29 July 2021, the prosecution applied to court to lift the gag order on Chua’s identity, with the unanimous agreement of the victims, and the district judge agreed. Chua later applied to set aside the district judge’s order to lift the gag order. However, his application was dismissed on the grounds that it was made with complete disregard for the victim’s suffering and was wholly self-serving.
The court also noted that should the gag order on Chua continue, it will only further the trauma and distress of the victims, which goes against the purpose of a gag order. This is because some of the victims felt helpless that they could not warn their friends and families of Chua’s identity and his predatory conduct, and feared that they would fall prey to Chua.
What happens when the gag order against the accused is lifted?
When a gag order against the accused is lifted, such as in the case of unanimous agreement of the victims, more weight will be accorded to the public interest in open justice.
This means that in addition to publicising the accused’s identity, the accused person will be publicly tried, the verdict of the court will be publicly announced and the reporting of ongoing proceedings will be permitted.
The publication of the victim’s identities, on the other hand, will still be prohibited.
If you have been the victim of a crime in Singapore, obtaining a gag order on your identity is a possibility if you are afraid of it being publicly revealed during court proceedings.
If you have been accused of a crime, however, do note that it is highly unlikely that you will be granted a gag order, unless revealing your identity could lead to the identification of the victim(s) involved and there is a need to protect their identities.
To get expert opinion on whether you might be able to get a gag order on your identity, you may want to consult a criminal lawyer. The lawyer will be able to assess your case, seek a gag order on your behalf as necessary, and also help you get the best outcome for your case as is possible.
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