SUBHAS GOVIN PRABHAKAR NAIR v PUBLIC PROSECUTOR

Facts

Subhas Govin Prabhakar Nair appealed to the General Division of the High Court in Magistrate’s Appeal No 9173 of 2023/01 against his conviction after trial on four charges under s 298A(a) of the Penal Code of knowingly attempting to promote feelings of ill-will between different racial or religious groups, and against his aggregate sentence of six weeks' imprisonment. The District Judge's reasons are reported as Public Prosecutor v Subhas Govin Prabhakar Nair [2024] SGDC 74.

The key facts were largely undisputed. On 29 July 2019 a rap video he wrote and performed with his sister was posted online; its lyrics repeatedly attacked Chinese people, and on 14 August 2019 he received a 24-month conditional warning for it. On 25 July 2020, responding to a video by a church founder and an influencer linking the gay pride movement to Satan, he posted on Instagram that if two Malay Muslims had said such things the Internal Security Department would have acted at once. On 15 October 2020, after a news report that a man involved in a fatal stabbing case had been given a conditional warning on a reduced charge of consorting, he posted that calling out racism earned a two-year warning while conspiring to murder an Indian man earned half the sentence. On 11 March 2021 he displayed a hand-drawn replica of that second post in a stage play at the Substation, removing it after the regulator objected.

Issues

1. Whether the words enmity, hatred or ill-will in s 298A(a) require speech tending to cause violence, public disorder, detestation or vilification.
2. Whether knowingly promotes in s 298A(a) requires a deliberate or malicious intent to promote racial hostility.
3. Whether each of the four convictions should be upheld.
4. Whether the sentence was manifestly excessive.

Holding

The High Court dismissed the appeal against both conviction and sentence, upholding the four convictions and the sentence of three weeks' imprisonment per charge, with two running consecutively for an aggregate of six weeks' imprisonment.

Reasoning

On interpretation, the court applied the purposive approach in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850. Because Parliament does not legislate in vain, the three terms carry distinct but overlapping meanings that together cover the range of feelings harmful to inter-group harmony; they are not a sliding scale, nor a single standard of detestation or vilification. The Indian provision's history showed ill-will was added to widen its scope, and Indian cases on hatred and enmity alone had to be treated with caution. The text, case law on the Sedition Act and the parliamentary debates showed the aim was to preserve racial and religious harmony, with no need for a threat of violence.

On mens rea, the word knowingly was deliberately chosen. Knowledge that the speech would promote ill-will suffices; a minister's remark that it mirrored the intent requirement in s 298 could not override the text, and no malicious intent is needed.

On the first post, the court agreed that it portrayed the Internal Security Department as favouring Chinese-Christians and targeting Malay-Muslims without factual basis; the video he responded to did not mention Malays or Muslims, criticism of government cannot mask stirring hatred, and reposting a screenshot from Twitter showed deliberation. On the second post, it upheld the finding that he had read the article, as he admitted in cross-examination, and so knowingly advanced the false claim of a conspiracy to murder, implying Chinese people were favoured at the expense of Indian lives. Using the same words as a stage prop did not strip them of meaning, and he knew the original post was already under police investigation, so assuming a replica was acceptable was unreasonable. The rap video, which he wrote himself, went well beyond criticising a brownface advertisement and amounted to a tirade against the Chinese community.

On sentence, deterrence was dominant for such offences, all the more given the reach of social media, and he had reoffended after his conditional warning. Three weeks per charge and six weeks overall were not manifestly excessive or crushing.

From the judgment