Racial Enmity: Sections 298 and 298A Penal Code Explained

Sections 298 and 298A of the Penal Code refer to activity or expression which might potentially offend a group of people on account of their race and/or religion.

Section 298 was inherited by Singapore from the Indian Penal Code. On the other hand, the offence in Section 298A was created pursuant to amendments to the Penal Code in 2007.

Prior to 2007, prosecutions for those kinds of activities and expressions were undertaken pursuant to the Sedition Act, but the scope of that offence and the elements required to prove it were a little different.

This article will explain the offences of sections 298 and 298A of the Penal Code, how they’ve been applied in the past and the possible consequences of being charged with these offences.

Section 298 of the Penal Code: Uttering Words, etc. to Wound Religious or Racial Feelings

A charge under section 298 of the Penal Code is a charge for uttering words, etc., with deliberate intent to wound the religious or racial feelings of any person.

To be found guilty of this offence:

• You must have expressed a thought in some way, whether verbally, by making some noise, by making some gesture or by using some prop;
• In expressing that thought, your intention must have been to hurt the “religious or racial feelings” of a person; and
• That person must have actually seen or heard your expression of that thought.

The “person” in this context can be thought of as just people generally, rather than a specific person. No one actually needs to have felt offended or had their “religious or racial feelings” actually hurt for you to be found guilty. It is sufficient that you merely intended to hurt those feelings.

In proving that intention, the content of the expression of your thought is often sufficient evidence in itself, i.e. that the expression is so hurtful that you must surely have intended to hurt someone’s “religious or racial feelings”.

“Religious or racial feelings” tend to be interpreted broadly by courts as being impinged upon whenever any potentially offensive or insulting thought is publicly expressed, if the thought has something to do with race, racism, race relations or religion.

Section 298A of the Penal Code: Promoting Racial or Religious Enmity

Section 298A of the Penal Code, on the other hand, is a charge for promoting enmity between different groups on grounds of religion or race or doing acts prejudicial to maintenance of harmony.

To be found guilty of an offence under section 298A:

• You must have expressed a thought in some way, whether verbally, in writing, by making some gesture or by using signs;
• That expression must promote, or try to promote, on grounds of religion or race, disharmony or feelings of enmity, hatred or ill-will between different religious or racial groups; and
• You must know that your expression or attempted expression of that thought is likely to promote those things.

OR

• You must have committed an act which you know might disturb harmony between different religious or racial groups; and
• That act must disturb, or be likely to disturb, the public tranquility.

The offence of section 298A is divided into two possible prohibited activities, the first being the expression of offending thoughts and the second being the commission of an offending act.

With regard to the first, namely expression of offending thoughts, your knowledge of the effect of your expression here is a lower bar than the intention required in section 298. For the purposes of finding someone guilty of expressing such offending thoughts.

It is usually sufficient for the prosecution to prove that the accused knew that any reasonable person would have known that such an expression would promote disharmony, enmity, hatred etc.

The societal interests being protected here (harmony, public tranquility, etc.) are not defined in the legislation.Vague concepts such as harmony do not lend themselves easily to legal definitions and do not appear often in legislation.

They are thought to be intentionally vague so as to allow courts a wide discretion in determining from all the relevant facts, what kind of activity is likely to cause disharmony, enmity, hatred, etc.

Where is the Line Between Legal and Illegal Acts and Speech?

Because of the use of such vague language, any expression or act that has anything to do with a racial or religious matter that might potentially offend anyone of a particular race and/or religion, or groups of races and/or religions, is at risk of resulting in a conviction under sections 298 or 298A.

However, public discussion of sometimes delicate issues relating to race and religion does occur in Singapore from time to time without charges being brought against the speakers. Hence, clearly not all expressions related to these issues might be off-limits.

The challenge is in determining what expression will be tolerated by law enforcement or the Attorney General’s Chambers (AGC), what will be tolerated by the courts, and what to make of the grey area in between.

It is instructive in this regard to examine the facts of cases that resulted in conviction and sentencing and those that did not result in any charges being brought.

Cases Where No Charges Under Sections 298 or 298A were Brought

Amy Cheong

In 2013, an employee of a labour union, Ms Amy Cheong, published some hurtful remarks online regarding Malay people. In these remarks, she criticised Malay wedding traditions as allegedly being a source of nuisance.

She also claimed that the Malay custom of holding weddings under blocks of flats was inconsiderate to residents, and merely a product of their poverty as they could not afford to rent a hotel space. In addition, she sought to draw a link between this Malay custom and what she claimed were higher divorce rates amongst Malay couples.

Whilst this appears on its face to be a communication made with the intention of wounding the racial feelings of Malay people, no charges were brought against Ms Cheong. Instead, a stern warning was issued.

Clearly, Ms Cheong’s remarks were troubling to the AGC but as no charges were brought, the courts’ analysis of whether the elements of an offence under section 298 had been made out never took place. Ultimately, Ms Cheong still paid a price for her remarks as her employment was terminated, and she was repatriated to Australia.

Sangeetha Thanapal

In 2018, writer and doctoral student Ms Sangeetha Thanapal, who is credited with coining the term “Chinese privilege”, published an article in Australia criticising the film, Crazy Rich Asians, which was set in Singapore, for its failure to feature racial minorities.

Ms Sangeetha went on to argue that this failure supported a narrative of Chinese racial and cultural dominance in Singapore that had become institutionalised. She also argued that such a narrative was supported by certain government policies that allegedly sought to shift Singapore’s racial demographics to increase the Chinese population.

In addition, she claimed that casual racism by Chinese people in Singapore against brown people was common.

The following year, Ms Sangeetha was detained by police on a visit to Singapore but ultimately no charges were brought against her. Instead, she was issued with a stern warning. The issue of whether Ms Sangeetha’s words were actually made with the intention of wounding the racial feelings of Chinese people was hotly debated at the time.

Ms Sangeetha claimed that her article was merely a response to the racial feelings of brown people being hurt, where she intended to drawattention to the racial discrimination suffered by brown people.

As no charges were brought, we will never know whether the courts would have found that Ms Sangeetha’s publication met the elements of a charge under section 298 or 298A. As Ms Sangeetha published her article in Australia, the issue of whether sections 298 or 298A have extraterritorial effect, and therefore could apply overseas, also remains unresolved.

Mr Dennis Chew brownface advertisement, and response by Preeti & Subhas Nair

In 2019, a government-linked company released an advertisement featuring a Chinese actor, Mr Dennis Chew, who was depicted in the advertisement wearing brownface in order to play the roles of an Indian and Malay character, respectively.

After it aired, siblings Preeti Nair and Subhas Nair released a rap video in which they criticised the advertisement.The Nair siblings were offended by this advertisement and composed a rap about the advertisement being racist and hurting the racial feelings of brown people. The rap lyrics included expletives.

No law enforcement investigation was made, nor were charges brought, against Mr Chew or the government-linked company which produced the advertisement. The Infocomm Media Development Authority (IMDA) “assessed” the advertisement and concluded that it did not breach its Internet Code of Practice.

However, IMDA nevertheless claimed it had issued a “stern reminder” to the makers of the advertisement that it was important to “pay attention to racial and religious sensitivities.”

No charges were brought against the Nair siblings either, but they were forced to remove their video from the internet. They were also issued with a 24-month conditional warning, meaning that charges may yet be brought for this incident, should they be accused of committing any further offences in the subsequent 24 months.

As of the date of writing, this has not yet occurred so it is unclear whether a court would find that the Nair siblings had the intention of wounding the racial feelings of Chinese people, as AGC alleged, or whether all the elements of an offence under sections 298 or 298A could be made out.

Given how broadly the language of sections 298 and 298A is drafted, it is entirely possible that the courts might view this kind of expression as falling foul of that broad language. However, we will have to wait for charges to be brought in a case like this before that hypothesis can be tested.

Cases Resulting in Convictions Under Sections 298 and 298A

Prior to the inception of section 298A, prosecutions for cases of this nature were usually brought pursuant to the Sedition Act. As there are few convictions for offences pursuant to sections 298 and 298A, analogous cases prosecuted under the Sedition Act are included below.

The cases resulting in actual convictions tend to be more clearly, egregiously and intentionally offensive than the examples above.

Gan Huai Shi

In 2005, Mr Gan Huai Shi published a blog post entitled “The Second Holocaust”, in which he advocated for a genocide of the Malay race. He was charged under the Sedition Act, convicted and sentenced to 24 months of supervised probation.

Clearly, inciting violence on the basis of race falls foul of both the Sedition Act and section 298A of the Penal Code, as well as several other provisions.

Benjamin Koh

In 2005, Mr Benjamin Koh published remarks and images online, including a parody of Singapore’s halal logo next to a pig’s head, and directed certain expletives at the Malay-Muslim community, mocked their customs and beliefs and compared Islam to Satanism. Mr Koh pleaded guilty to offences under the Sedition Act and was sentenced to 1 month’s imprisonment.

Nicholas Lim

In 2005, Mr Nicholas Lim pleaded guilty to a charge under the Sedition Act of doing an act with a seditious tendency to promote feelings of ill-will and hostility between different classes of the Singapore population by posting anti-Muslim remarks online.

The court decision did not elaborate further on the nature or content of those remarks, but sentenced him to 1 day’s imprisonment and the maximum $5,000 fine.

Ong Kian Cheong and Dorothy Chen Hien Leng

In 2009, evangelical Christians Mr Ong Kian Cheong and Ms Dorothy Chen Hien Leng were convicted of offences under the Sedition Act for sending offensive religious literature to people in Singapore.

The purpose of the literature was to persuade the reader to convert to Protestant Christianity. It did this by undermining the validity of other religions, specifically Islam and Catholicism.

The manner in which these publications undermined other religions offended members of those religions. Accordingly, Mr Ong and Ms Chen were found after a trial to have done an act with a seditious tendency to promote feelings of ill will and hostility between different classes of the Singapore population, namely between Protestants and Muslims, and between Protestants and Catholics.

They were both sentenced to 8 weeks’ imprisonment.

Amos Yee

In 2015, video blogger and former child actor Mr Amos Yee was convicted under section 298 of wounding the religious feelings of Christians for a video he published of himself in which he compared the values of Christianity, Christians and Jesus Christ unfavourably to those of the late Mr Lee Kuan Yew, former Prime Minister of Singapore.

In particular, he described Jesus Christ, a central figure in the Christian religion, as being “power hungry”, “malicious” and “deceptive”, and criticised Christians for lacking sufficient knowledge of the contents of the Bible.

He was sentenced to 3 weeks’ imprisonment for that offence.

Nalla Mohamed Abdul Jameel Abdul Malik

In 2017, Muslim imam Mr Nalla Mohamed Abdul Jameel Abdul Malik, was convicted under section 298A for promoting enmity between different religious groups when he publicly prayed out loud in Arabic in his mosque for “victory over Jews and Christians”.

The Ministry of Home Affairs stated that he had not been deliberately malicious. Nevertheless, he was convicted under section 298A, fined $4,000 and deported to India.

Sentences

You can be sentenced to anywhere up to 3 years in prison and/or an unlimited fine if you are convicted of an offence under either section 298 or 298A of the Penal Code.

However, as observed above, stern or conditional warnings are the most common outcome of most investigations into matters of this nature.

For cases that do result in charges being brought under sections 298 or 298A, as we have seen above, substantial fines ($4,000-5,000) and/or short imprisonment terms (3-8 weeks) are the most common outcome. For offenders who are young enough and eligible for probation, a lengthy term of supervised probation is also a possible outcome.

Those possible sentences represent a rather broad spectrum of possible outcomes for offenders so a variety of sentencing factors are relevant to the ultimate sentence in any given case. Examples of relevant sentencing factors include:

Mitigating factors (that may result in a lower sentence):

• Youth
• Retraction and apology, if any
• Remorse
• Undertaking to not reoffend
• Willingness to undergo counselling
• No previous convictions
• Plea of guilt
• Cooperation with investigation

Aggravating factors (that may result in a harsher sentence):

• Existing criminal record
• Whether there are other charges
• Lack of remorse
• Continuing offending behaviour
• Extremely insulting nature of offending acts/expression
• Extensive planning of offending acts/expression

Are Offences Under Section 298 and 298A Arrestable?

Neither of these offences are arrestable offences. This means that the police must obtain an arrest warrant from the court before they can arrest the alleged offender.

So for example, if you made a remark regarding race relations that hurt the racial feelings of a person of a particular race, the police do not have the authority to arrest you unless they have a warrant for your arrest.

Will Convictions Under Sections 298 and 298A Result in a Criminal Record?

If you are convicted of an offence under section 298, it will not result in a criminal record as it is not a registrable offence under the Registration of Criminals Act.

On the other hand, if you are convicted of an offence under section 298A, you may or may not have a criminal record. This depends on whether the Commissioner of Police chooses to exercise his discretion to not register your criminal record, among other factors.

Even if your criminal record under section 298A has been registered, you might still have the opportunity to have your criminal record treated as spent. This simply means that your record will be wiped clean. To qualify for having your record spent, you must first meet the following criteria:

• If you were given a prison sentence, your imprisonment term must have been not more than 3 months;
• If you were given a fine, the fine imposed on you must have been not more than $2,000;
• You must not have any other conviction on your criminal record; and
• You must not have any previous spent record on the register.

If you meet these criteria, you then have to remain crime-free for at least 5 consecutive years, starting from the date of your release from prison, or from the date that your sentence was passed if you were given a fine. Once you accomplish this, your record will be spent automatically, and you will be able to legally declare that you do not have a criminal record.

What to Do If You’re Being Investigated For a Charge Under Sections 298 or 298A

If you are being investigated for a possible offence of this nature, it is highly advisable to seek legal advice. If charges are brought against you, it is essential that you engage legal counsel.

Whilst in theory, it is possible to represent yourself, you are highly advised to engage a criminal lawyer instead. A lawyer can assist to negotiate plea bargains that include charge reductions or agreement on the kind of sentences that will be requested.

If there is a basis to contest the charges, a lawyer is necessary in order to be able to effectively do so. If your lawyer advises against contesting your charges, but you feel that you have a valid defence, seek a second opinion from another lawyer before deciding whether or not to plead guilty.