CNZ v PUBLIC PROSECUTOR

"a gag order is concerned with only the interests of the victims and never with the interests of the accused person." — Per Sundaresh Menon CJ, Para 3

Case Information

• Citation: [2021] SGHC 290 (Para 0)
• Court: General Division of the High Court of the Republic of Singapore (Para 0)
• Case Number: Criminal Motion No 69 of 2021 (Para 0)
• Coram: Sundaresh Menon CJ (Para 0)
• Hearing Date: 24 September 2021 (Para 0)
• Decision Date: 24 December 2021 (Para 0)
• Counsel for the Applicant: Kalidass Murugaiyan, Chua Hock Lu and Ashvin Hariharan (Kalidass Law Corporation) (Para 0)
• Counsel for the Respondent: Nicholas Khoo, Tan Zhi Hao and Ng Shao Yan (Attorney-General’s Chambers) (Para 0)
• Area of Law: Criminal Procedure and Sentencing — Gag orders — Amendment or revocation (Para 0)
• Judgment Length: Not stated in the extraction (NOT ANSWERABLE)

Summary

This criminal motion concerned whether a gag order made under s 7(3) of the State Courts Act could be varied so as to disclose the applicant’s identity, and whether the applicant could successfully challenge that variation. The applicant had been charged for filming voyeuristic videos of various women, and gag orders were initially made to protect the victims’ identities and, because they were classmates and schoolmates, the applicant’s identity as well. The Prosecution later sought disclosure of the applicant’s identity after all 11 victims indicated that they agreed to the lifting of the gag order, and the State Court allowed that application. The applicant then brought this motion to set aside the variation. (Paras 1, 7, 11, 12, 18)

The court held that the State Court had jurisdiction to vary a gag order because the power to make such an order necessarily includes the power to amend, vary, rescind, revoke or suspend it. The court also held that the victim impact statements were not the proper vehicle for conveying the victims’ views on disclosure, because such statements are intended for sentencing and for communicating harm suffered as a direct result of the offence. However, that irregularity did not justify setting aside the order, because the applicant had to show serious injustice and something palpably wrong with the order, and he could not do so. (Paras 22, 31, 46)

On the merits, the court held that the victims’ views were an undoubtedly relevant factor in deciding whether to disclose the applicant’s identity. Open justice remained the starting point, and the court concluded that the unanimous and unequivocal support of all 11 victims for disclosure meant there was no countervailing interest that outweighed open justice. The application was dismissed, and the applicant was ordered to pay costs of $2,000 to the Prosecution. (Paras 33, 38, 51, 55, 57)

How did the court describe the applicant’s offending and the sequence of gag orders?

The applicant, Chua Yi Jin Colin, was charged for filming voyeuristic videos of various women, and the first State Courts mention led to a gag order under s 7(3) of the State Courts Act to prohibit publication of information that might identify any witness in the proceedings. The court explained that the initial gag order was not limited to the victims’ identities; because the victims were classmates and schoolmates of the applicant, the order also protected the applicant’s identity. The court later noted that additional charges were preferred and that a second gag order likewise covered the applicant’s identity. (Paras 1, 7, 8)

"The applicant, Chua Yi Jin Colin, was charged for filming voyeuristic videos of various women." — Per Sundaresh Menon CJ, Para 1

The chronology mattered because the applicant’s challenge was not to the original gag order alone, but to the later variation that removed protection for his identity. The court recorded that the applicant was first charged on 2 October 2019 with two counts of insulting the modesty of a woman under s 509 of the Penal Code, and that on 8 January 2020 the Prosecution preferred 18 additional charges, comprising one charge under s 30(1) of the Films Act and 17 charges under s 509 of the Penal Code. The court also noted that on 29 July 2021 the applicant pleaded guilty to seven charges under s 509 and one charge under s 30(1), with the remaining eight charges taken into consideration for sentencing. (Paras 5, 8, 11)

"At his first State Courts mention, the court granted an order under s 7(3) of the State Courts Act (Cap 321, 2007 Rev Ed) (“SCA”) to prohibit the publication of any information that might lead to the identification of any witness in those proceedings." — Per Sundaresh Menon CJ, Para 1

The court also explained that the Prosecution initially sought disclosure of only the applicant’s identity, but that application was refused because two victims had not unequivocally consented to the risk of identification. Later, after all 11 victims supported disclosure, the Prosecution made a second application, and District Judge Tan allowed it. The present motion was the applicant’s attempt to undo that later variation. (Paras 9, 11, 12)

"With the victims’ unanimous consent, the Prosecution applied for the gag order to be varied to disclose the applicant’s identity (“the Second Application”)." — Per Sundaresh Menon CJ, Para 11

What were the applicant’s main objections to the variation of the gag order?

The applicant raised two preliminary objections. First, he contended that a State Court was not empowered to lift, vary or rescind a gag order made under s 7(3) of the State Courts Act. Second, he argued that the victim impact statements were used for an improper purpose because they were deployed to convey the victims’ stance on disclosure rather than to address sentencing harm. He further submitted that the victims’ support for disclosure should have no bearing on whether the gag order ought to be varied, and he maintained that the 12th victim’s interests remained paramount. (Paras 14, 15, 18)

"Mr Murugaiyan raised two preliminary objections to District Judge Tan’s Order. First, he contended that a State Court was not empowered to lift, vary or rescind a gag order made under s 7(3) of the SCA." — Per Sundaresh Menon CJ, Para 14

The applicant’s position was therefore both jurisdictional and substantive. On jurisdiction, he sought to confine the State Court to the original making of the gag order, arguing that it could not later revisit the order. On substance, he argued that the victims’ views were irrelevant to the legal question under s 7(3), and that the court should not treat their consent as a basis for disclosure. The court framed these objections as distinct issues, including a preliminary procedural point about whether the matter should have been brought by criminal motion or petition for criminal revision. (Paras 14, 15, 18)

"As for the substance of this application, Mr Murugaiyan emphasised that the victims’ support for the disclosure of the applicant’s identity should have no bearing on whether the gag order ought to be so varied." — Per Sundaresh Menon CJ, Para 15

The Prosecution took the opposite position. It argued that the court had jurisdiction to vary the gag order, that the victim impact statements were merely an inefficient but non-prejudicial way of conveying the victims’ views, and that those views were relevant when the court considered whether to maintain or lift the gag order. The Prosecution also argued that, because all 11 victims supported disclosure, the public interest in open justice took precedence. (Paras 17, 18)

"the Prosecution argued that it was entirely appropriate for the court to consider the views of the victims when imposing or fashioning a gag order." — Per Sundaresh Menon CJ, Para 17

Did the State Court have jurisdiction to vary a gag order under s 7(3) of the State Courts Act?

The court held that it did. The starting point was the text of s 7(3) of the State Courts Act, which empowers a State Court to order that no person publish identifying information about a witness or do any other act likely to lead to identification. The court reasoned that the power to make such an order necessarily includes the power to amend, vary, rescind, revoke or suspend it, and that this is consistent with s 27(3) of the Interpretation Act. The court therefore rejected the applicant’s argument that the State Court was functus officio and unable to revisit the gag order. (Paras 6, 22)

"A State Court may at any time order that no person shall — (a) publish the name, address or photograph of any witness in any matter or proceeding or any part thereof tried or held or to be tried or held before it, or any evidence or any other thing likely to lead to the identification of any such witness; or (b) do any other act which is likely to lead to the identification of such a witness." — Per Sundaresh Menon CJ, Para 6

The court explained that the power to issue a gag order is an ancillary power intended to assist the court in its ultimate task of adjudication. That ancillary power would be substantially undermined if it were as inflexible as the applicant contended. The court therefore held that the State Court’s power to make gag orders under s 7(3) necessarily includes the power to amend, vary, rescind, revoke or suspend such orders. The court also noted that the applicant’s reliance on res judicata did not assist him, because the second application was not barred in the circumstances. (Paras 22, 25, 26)

"a State Court’s power to make gag orders under s 7(3) of the SCA necessarily includes the power to amend, vary, rescind, revoke or suspend such orders." — Per Sundaresh Menon CJ, Para 22

The court’s reasoning was reinforced by its treatment of the broader statutory context. It referred to s 27(3) of the Interpretation Act, which provides that a power to make subsidiary legislation, issue an order or do an act includes the power to amend, vary, rescind, revoke or suspend that order unless the contrary intention appears. The court also referred to the Supreme Court of Judicature Act and the Criminal Procedure Code in discussing the procedural route and the scope of revisionary powers. The applicant’s attempt to characterise the State Court as lacking any revisory authority was therefore rejected as inconsistent with the statutory scheme. (Paras 22, 32, 46)

"where any Act confers a power to make subsidiary legislation, to issue any order or to do any act, the power shall, unless the contrary intention appears, be construed as including the power exercisable in like manner and subject to the like consent and conditions, if any, to amend, vary, rescind, revoke or suspend the subsidiary legislation made or order issued or any part thereof or to abstain from doing the act" — Per Sundaresh Menon CJ, Para 22

Why did the court say the victim impact statements were used for the wrong purpose, and why did that not invalidate the order?

The court agreed with the applicant in principle that victim impact statements should not have been used to convey the victims’ stance on the disclosure of the applicant’s identity. It explained that victim impact statements are only relevant to the Prosecution’s address on sentence and are intended to allow victims to convey to the court the harm they suffered as a direct result of the offence. On that basis, the court accepted that the statements were deployed for an improper purpose. (Paras 31, 32)

"Victim impact statements are only relevant to the Prosecution’s address on sentence, and their sole purpose is to allow victims to convey to the court any harm that they have suffered as a direct result of an offence" — Per Sundaresh Menon CJ, Para 31

However, the court did not treat that irregularity as fatal. It held that the applicant had to show serious injustice and demonstrate that there was something palpably wrong with District Judge Tan’s order that struck at its basis as an exercise of judicial power. The court found that threshold was not met. The improper use of victim impact statements did not, in itself, undermine the substantive correctness of the order, because the victims’ views were independently relevant and were in fact clearly and unanimously in favour of disclosure. (Paras 32, 46)

"he had to demonstrate “serious injustice” and show that there was something “palpably wrong” with District Judge Tan’s Order that struck at its basis as an exercise of judicial power" — Per Sundaresh Menon CJ, Para 46

The court therefore distinguished between procedural irregularity and substantive injustice. Even though the victim impact statements were not the correct procedural vehicle, the court was not persuaded that the irregularity caused a failure of justice. The court’s analysis of s 423(c) of the Criminal Procedure Code was relevant here, because that provision states that an order may not be reversed or altered on account of the improper admission of evidence unless the improper admission has caused a failure of justice. The court concluded that the applicant could not satisfy that standard. (Paras 32, 46)

"Section 423(c) of the CPC provides that an order may not be reversed or altered on account of the improper admission of any evidence, unless the improper admission of evidence has caused a failure of justice." — Per Sundaresh Menon CJ, Para 32

Were the victims’ views relevant under s 7(3) of the State Courts Act?

The court held that they were. It reasoned that the principle of open justice is the starting point, but that gag orders are a derogation from that principle and are justified on two principal grounds. Against that backdrop, the court concluded that the views of the victims are an undoubtedly relevant factor that must be weighed in the balance when deciding whether to disclose an accused person’s identity. The court rejected the applicant’s submission that the victims’ support for disclosure should have no bearing on the decision. (Paras 33, 36, 38)

"The parties were on common ground that the starting point of my analysis was the principle of open justice. This principle is enshrined in s 7(1) of the SCA" — Per Sundaresh Menon CJ, Para 33

The court elaborated that any departure from open justice is only justified to the extent necessary to serve the ends of justice. It cited authorities including Millar v Dickson and Attorney-General v Leveller Magazine Ltd, as well as Bentham’s famous formulation that open justice “keeps the judge, while trying, under trial.” The court also referred to parliamentary debates to explain the public interest in publication of an accused person’s identity. In that framework, the victims’ views were not determinative, but they were plainly relevant because the gag order existed to protect their interests. (Paras 37, 38, 39, 40)

"any departure from the general rule of open justice is only justified “to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice”" — Per Sundaresh Menon CJ, Para 37

The court also made a more specific point about the purpose of gag orders. It observed that such orders are justified on two principal grounds, and that they are concerned with the protection of victims and witnesses. That is why the victims’ views matter: if the persons whom the order is designed to protect unanimously say that disclosure is acceptable, that is a powerful consideration in the balancing exercise. The court therefore held that those views are eminently relevant to the court’s decision on whether to order disclosure. (Paras 36, 44)

"In my judgment, the views of the victims are an undoubtedly relevant factor that must be weighed in the balance." — Per Sundaresh Menon CJ, Para 38

Why did the court conclude that the applicant’s identity should be disclosed?

The court concluded that the applicant’s identity should be disclosed because all 11 victims gave unequivocal and unanimous support for disclosure, and there was no countervailing interest that outweighed open justice. The court emphasised that the victims’ support was not merely formal; it was expressed in victim impact statements containing the same sentence, namely that each victim agreed to the lifting of the gag order even if it increased the risk of identification. That unanimity was central to the court’s conclusion. (Paras 11, 48, 51)

"The Prosecution adduced victim impact statements from all 11 victims, with each statement containing the following sentence: “I would agree to the lifting of the gag order on [the applicant’s] name, even if it increases the risk of me being identified.”" — Per Sundaresh Menon CJ, Para 11

The court also considered the position of the 12th victim, but held that her interests were irrelevant to the present inquiry because she was not a witness in the pending proceedings. That meant the balancing exercise was confined to the victims whose interests the gag order was designed to protect in the proceedings before the court. Once that was recognised, the unanimous support of the 11 victims for disclosure tipped the balance decisively in favour of open justice. (Paras 53, 51)

"As the 12th victim was not a witness in the pending proceedings, her interests were irrelevant to the present inquiry." — Per Sundaresh Menon CJ, Para 53

The court’s final conclusion was stated in direct terms: in light of the victims’ unequivocal and unanimous support for disclosure of the applicant’s identity, there was no countervailing interest that outweighed the principle of open justice. The court therefore dismissed the application. This was not a case where the court had to choose between competing victim interests or between victim protection and a strong confidentiality imperative; rather, the persons protected by the gag order themselves supported disclosure. (Paras 51, 55)

"In the light of the victims’ unequivocal and unanimous support for the disclosure of the applicant’s identity, there was no countervailing interest that outweighed the principle of open justice." — Per Sundaresh Menon CJ, Para 51

How did the court deal with res judicata, revisionary powers, and the procedural route of the application?

The court addressed the applicant’s preliminary objections by considering whether the second application was barred by res judicata and whether the matter was properly brought by criminal motion. It referred to Henderson v Henderson and Beh Chew Boo v Public Prosecutor in discussing the doctrine of res judicata, including cause of action estoppel, issue estoppel, and extended res judicata. The court also referred to James Raj s/o Arokiasamy v Public Prosecutor on the point that a procedural defect in the form of the application did not necessarily defeat substantive revisionary jurisdiction. (Paras 19, 20, 21)

"The following issues arose for my determination: (a) First, did District Judge Tan act within his jurisdiction in varying the gag order? (b) Second, were the victim impact statements used for their proper purpose? If this question was answered in the negative, what was the effect of such an irregularity? (c) Third, are the victims’ views towards the disclosure of an accused person’s identity relevant under s 7(3) of the SCA? (d) Fourth, having regard to the relevant facts and circumstances, should the applicant’s identity be disclosed?" — Per Sundaresh Menon CJ, Para 18

The court’s treatment of revisionary powers was tied to the threshold for intervention. It referred to Ang Poh Chuan v Public Prosecutor for the proposition that the applicant had to show serious injustice and something palpably wrong with the order. It also discussed Public Prosecutor v Teo Johnboy John in relation to functus officio after transmission to the High Court, but the extraction does not provide a fuller holding beyond that discussion. The court’s ultimate point was that the applicant could not use procedural objections to displace the substantive basis for the order. (Paras 46, 47)

"I dismissed the application with brief oral grounds." — Per Sundaresh Menon CJ, Para 3

In practical terms, the court treated the procedural route as secondary to the substantive question whether the order should stand. Even if the victim impact statements were not the ideal mechanism, and even if the application was framed as a criminal motion rather than some other procedural vehicle, the applicant still had to show a substantive basis for setting aside the order. He failed to do so because the victims’ unanimous support for disclosure was a powerful and legitimate consideration, and because the order did not produce serious injustice. (Paras 46, 51, 55)

What statutory framework did the court rely on in analysing gag orders and disclosure?

The court relied on several statutory provisions. It quoted s 7(3) of the State Courts Act, which authorises a State Court to prohibit publication of identifying information about a witness or any other act likely to lead to identification. It also referred to s 7(1) of the same Act as embodying the principle of open justice. In addition, the court referred to s 27(3) of the Interpretation Act to support the proposition that a power to make an order includes the power to vary or revoke it unless the contrary intention appears. (Paras 6, 22, 33)

"Sections 7(3) of the SCA provides as follows:" — Per Sundaresh Menon CJ, Para 6

The court also referred to the Criminal Procedure Code, including s 423(c), which it quoted for the proposition that an order may not be reversed or altered on account of the improper admission of evidence unless that improper admission caused a failure of justice. The extraction also states that the judgment referred to ss 228(2)(b), 228(7), 425A(1) and 425A(2), and s 409 of the CPC, though the extraction does not provide the specific text or a detailed explanation of each provision’s role. The judgment further referred to s 509 of the Penal Code and s 30(1) of the Films Act as the substantive offences charged. (Paras 11, 32, 20)

"Section 423(c) of the CPC provides that an order may not be reversed or altered on account of the improper admission of any evidence, unless the improper admission of evidence has caused a failure of justice." — Per Sundaresh Menon CJ, Para 32

The court also referred to s 8(3) of the Supreme Court of Judicature Act, though the extraction does not set out the specific legal proposition for which it was cited. Because the extraction does not provide the relevant text or reasoning in full, any further elaboration would be speculative and is therefore omitted. What can safely be said is that the court situated its analysis within a broader statutory framework governing criminal procedure, revision, and the making and variation of gag orders. (Para 20)

Which authorities did the court rely on for open justice, victim impact statements, and gag orders?

The court referred to a number of authorities to support its analysis. For open justice, it cited Millar v Dickson and Attorney-General v Leveller Magazine Ltd and others, and it also referred to Bentham’s formulation that open justice keeps the judge under trial. For gag orders, it referred to Public Prosecutor v BPK as authority on the purposes of gag orders, including encouraging candid testimony and minimising re-victimisation. It also referred to parliamentary debates from 14 May 2012 and 10 May 2021 to explain the public interest in publication of an accused person’s identity and the scope of gag orders. (Paras 37, 39, 40, 41)

"Such a derogation is justified on two principal grounds." — Per Sundaresh Menon CJ, Para 36

For victim impact statements, the court referred to R v Dowlan and to Kow Keng Siong’s Sentencing Principles in Singapore. These were used to support the proposition that victim impact statements are confined to sentencing and should not be used as a backdoor means of introducing material for other purposes. The court’s reliance on these authorities reinforced its conclusion that the statements were used for the wrong purpose, even though that irregularity did not ultimately invalidate the order. (Paras 31, 32)

"The applicant, Chua Yi Jin Colin, was charged for filming voyeuristic videos of various women." — Per Sundaresh Menon CJ, Para 1

The court also referred to Xu Yuanchen v Public Prosecutor and another matter and Amarjeet Singh v Public Prosecutor in relation to the nature of gag orders and the availability of powers to amend or revoke them. Public Prosecutor v BNO was cited as authority that the High Court in its original jurisdiction dealt with lifting a gag order on an accused person’s identity. These authorities supported the court’s conclusion that the power to vary a gag order exists and that the applicant’s jurisdictional objection failed. (Paras 22, 23, 24)

Why does this case matter for future gag order applications?

This case matters because it clarifies that gag orders under s 7(3) of the State Courts Act are not rigid, one-way orders that cannot be revisited. The court held that the power to make such an order includes the power to amend, vary, rescind, revoke or suspend it, which is important for practitioners dealing with changing factual circumstances after the original order is made. The decision therefore confirms that the State Court retains a practical ability to respond to developments such as the victims’ later consent to disclosure. (Paras 22, 25)

"the power to issue a gag order under s 7(3) of the SCA is thus one in a suite of ancillary powers intended to assist the court in its ultimate task of adjudication; this ancillary power would be substantially undermined if it were as inflexible as Mr Murugaiyan contended." — Per Sundaresh Menon CJ, Para 25

The case is also significant because it squarely recognises that victims’ views are relevant to whether an accused person’s identity should remain suppressed. That is a practical point for prosecutors, defence counsel, and judges alike: if the gag order exists to protect victims, then their informed and unanimous position on disclosure can be decisive, though not automatically determinative. The decision therefore provides a structured balancing approach anchored in open justice and the protective purpose of gag orders. (Paras 38, 44, 51)

"those views are eminently relevant to the court’s decision on whether to order such disclosure." — Per Sundaresh Menon CJ, Para 44

Finally, the case is important because it draws a clear line between proper and improper use of victim impact statements. Even where the court ultimately reaches the same substantive result, practitioners should not assume that any procedural shortcut will be tolerated. The court accepted that the statements were used for the wrong purpose, but it refused to set aside the order because no serious injustice was shown. That combination of doctrinal clarity and practical restraint makes the case a useful guide for future applications involving confidentiality, victim protection, and open justice. (Paras 31, 46, 55)

Cases Referred To

Legislation Referenced

• State Courts Act, s 7(1) (Para 33) [CDN] [SSO]
• State Courts Act, s 7(3) (Paras 6, 22) [CDN] [SSO]
• Interpretation Act, s 27(3) (Para 22) [CDN] [SSO]
• Penal Code, s 509 (Paras 5, 8, 11) [CDN] [SSO]
• Films Act, s 30(1) (Paras 8, 11) [CDN] [SSO]
• Criminal Procedure Code, s 228(2)(b) (Para 20) [CDN] [SSO]
• Criminal Procedure Code, s 228(7) (Para 20) [CDN] [SSO]
• Criminal Procedure Code, s 409 (Para 20) [CDN] [SSO]
• Criminal Procedure Code, s 423(c) (Paras 32, 20) [CDN] [SSO]
• Criminal Procedure Code, s 425A(1) (Para 20) [CDN] [SSO]
• Criminal Procedure Code, s 425A(2) (Para 20) [CDN] [SSO]
• Supreme Court of Judicature Act, s 8(3) (Para 20) [CDN] [SSO]

Source Documents

• Original Judgment — Singapore Courts
• Archived Copy (PDF) — Litt Law CDN

This article analyses [2021] SGHC 290 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.