Argument by town council’s lawyers wholly misconceived and untenable, says judge
By Amanda Lee, TODAY, 29 Nov 2014
By Amanda Lee, TODAY, 29 Nov 2014
The Workers’ Party-run Aljunied-Hougang-Punggol East Town Council (AHPETC) was yesterday found guilty of holding a Chinese New Year fair earlier this year without a permit. Sentencing was adjourned to Dec 24 and the town council could be fined up to S$1,000.
Delivering his oral judgment for almost two hours, District Judge Victor Yeo threw out what he described as “somewhat convoluted and perplexing” legal arguments by the town council’s lawyers. Ruling that the event fell under the definition of a “temporary fair” — and thus was subject to a permit under Section 35 of the Environmental Public Health Act (EPHA) — the judge said the argument by AHPETC’s lawyers that the fair should be construed as a “social and communal function” and a “mini fair” was “wholly misconceived and untenable”.
The judge also noted that at no point had AHPETC informed or sought clarification from the National Environment Agency (NEA) on whether a permit was required for its event.
“For the defence to now vigorously mount a challenge that there were no requirements for the town council to apply for a permit is simply unconvincing, to say the least, or a mere afterthought at worse,” he added.
Over the two-and-a-half-day trial last month, AHPETC’s lawyers also argued that the town council had the “lawful authority” to hold the fair, citing Section 18 of the Town Councils Act, which states that the functions of a town council include “to control, manage, maintain and improve the common property of the residential and commercial property in housing estates”.
It also argued that Section 35 of the EPHA is “substantively invalid” and does not apply to town councils, which are governed by the Town Councils Act.
Over the two-and-a-half-day trial last month, AHPETC’s lawyers also argued that the town council had the “lawful authority” to hold the fair, citing Section 18 of the Town Councils Act, which states that the functions of a town council include “to control, manage, maintain and improve the common property of the residential and commercial property in housing estates”.
It also argued that Section 35 of the EPHA is “substantively invalid” and does not apply to town councils, which are governed by the Town Councils Act.
Judge Yeo pointed out that, under the Town Councils Act, the Town Councils (Use of Common Property) Rules merely empower a town council to impose charges only for stipulated use or activities on parts of common property such as void decks, dismissing the argument of AHPETC’s lawyers that Section 35 of the EPHA and the NEA’s enforcement of the section against the town council would amount to “encroachment, bind and fetter upon the lawful powers, autonomy and reasonable discretion” vested upon any town council and its officers.
Judge Yeo said the Town Councils Act and EPHA had been enacted for a wholly different purpose and that they covered separate issues.
In enacting the Town Councils Act, it could not have been Parliament’s intention for the town councils to be exempt from the licensing laws of the land in their control and management of common property without expressly stating so, he pointed out.
It is also clear that the Town Councils Act covers municipal matters and allows town councils to regulate the use of parts of common property and impose charges for such use, while the EPHA is concerned with wider environmental and public-health concerns that affect the public.
The judge noted that the fair had been held in a public area in the vicinity of commercial shops and residential blocks, where considerable human traffic could be expected. The fair, which ran from Jan 9 to 30 at Hougang Central Hub, had five stalls.
“Given that the temporary fair operated for an extended period of time of three weeks … I am not able to lightly dismiss the prosecution’s contention of the potential disamenities and inconvenience associated …which could affect the pedestrian flow,” Judge Yeo said.
The judge ruled that AHPETC had not taken “reasonable care” to avoid committing the offence. He noted that for instance, there was no communication from AHPETC although the NEA warned that it would proceed with enforcement action if the town council commenced the fair without a permit.
“The facts of this case clearly do not support the defence’s contention that the town council had made a mistake of fact that it was either bound by law or justified by law to organise a temporary fair without a permit,” said Judge Yeo.
WP Members of Parliament (MPs) Pritam Singh and Png Eng Huat, who are the vice-chairmen of AHPETC, were at the hearing yesterday as the judge read out his verdict. They issued a media statement saying that they were disappointed with the ruling. “But we will consult our lawyers on our legal options and do not rule anything out,” the statement added.
Mr Singh also told reporters outside the court that the WP MPs are contributing to the lawyer fees and “no town council funds will be touched pertaining to this case”.
Town council deliberately flouted the law: NEA
TODAY, 29 Nov 2014
TODAY, 29 Nov 2014
Following the court’s verdict, the National Environment Agency (NEA) yesterday said Aljunied-Hougang-Punggol East Town Council (AHPETC) had “sought to disingenuously portray its deliberate flouting of the law as an attempt to obtain guidance from the court” during the trial from Oct 14 to 16.
“AHPETC had neither sought clarification from the NEA nor raised any legal grounds when it deliberately held a fair without a permit. As the judge found, AHPETC did not take reasonable care to obtain the necessary licence as required under Section 35 of the EPHA (Environmental Public Health Act) and avoid committing the offence,” the NEA said in a media statement. “Instead, AHPETC chose to deliberately and persistently breach Section 35 of the EPHA.”
The NEA said the conviction of AHPETC affirmed the intent of the section, which is to protect the public from public-health concerns and disamenities arising from temporary fairs.
The NEA reiterated that it had informed AHPETC of the need for a permit and repeatedly reminded the town council that its application had been incomplete. The agency had also issued “multiple warnings” to the town council to stop the fair after it commenced without a permit. In spite of these, AHPETC persisted in breaking the law, the NEA pointed out.
The agency reiterated that it requires temporary-fair operators to have a licence to ensure public-health concerns and disamenities arising from these fairs, such as food hygiene, waste management and noise nuisance, are addressed.
The concerns of the public and other stakeholders, such as shopkeepers, are taken into consideration. The same permit requirements are imposed on all applicants, it added.
Between 2011 and Oct 31 this year, there were 16 instances where errant operators of unlicensed fairs were taken to task, the NEA said. The fairs that were penalised were located in Tampines, Toa Payoh, Simei, Clementi, Kovan City, Bukit Merah, Kampong Glam, Chinatown, Serangoon North, Rivervale Walk and Tanglin Halt.
Judge says CNY event required a permit
He says AHPETC broke law, event fits dictionary definition of a 'fair'
By Walter Sim, The Straits Times, 29 Nov 2014
He says AHPETC broke law, event fits dictionary definition of a 'fair'
By Walter Sim, The Straits Times, 29 Nov 2014
THE town council run by the Workers' Party (WP) has been found guilty of breaking the law by holding a Chinese New Year event this year without a permit.
District Judge Victor Yeo, in delivering his judgment yesterday, said the event from Jan 9 to Jan 30 at Hougang Central was a "temporary fair" and thus required a permit under the Environmental Public Health Act (EPHA).
Judge Yeo said it fits the dictionary definition of a "fair": a gathering of buyers and sellers at a particular place and time. He noted the law makes no reference to the purpose or type of fair, its size, scale, location or duration.
He will pass sentence on the Aljunied-Hougang-Punggol East Town Council (AHPETC) on Dec 24. It can be fined up to $1,000.
The National Environment Agency (NEA) had, before the trial, offered the town council a composition fine but it was rejected.
Over 2½ days of hearings last month, AHPETC argued that the fair, with five stalls selling items like cookies between blocks 811 and 814, was a "community event" or a "mini-fair" to bring festive cheer.
Therefore, it disputed NEA's argument that it was a "temporary fair" that required a permit.
Yesterday, the judge said he found it "exceedingly puzzling" that AHPETC did not once raise its objections with the NEA over the requirement of a permit.
Instead, it submitted an application form, replacing the words "trade fair" with "event" and did not attach all the necessary supporting documents. While it sought approval for fire safety, its application form did not include a letter of support from the area's Citizens' Consultative Committee.
AHPETC chairman Sylvia Lim had previously testified that this condition was "unreasonable".
Judge Yeo, noting Ms Lim's testimony that AHPETC would have submitted the form in full if it were suitable, said: "The true objection in my view appeared to be the conditions stated in the application form, and not that a permit was required per se."
He added: "To now vigorously mount a challenge that there was no requirement for the town council to apply for a permit is simply unconvincing to say the least, or a mere afterthought at worse."
AHPETC had cited Section 18 of the Town Councils Act to claim that a permit was not needed as the event was held in a common area under their charge. Section 18 says a town council is to "control, manage, maintain and improve the common property of residential and commercial property in the housing estates".
But Judge Yeo found the argument "wholly misconceived and untenable". He said the Act does not impinge on the EPHA, which deals with "wider environmental and public health concerns which affect the public at large", such as pest infestation and noise nuisance, he added.
He agreed with the prosecution that the Town Councils Act does not "give (a town council) carte blanche to do whatever it chooses within its precinct without any regard to the requirements of the prevailing laws and regulations".
AHPETC's vice-chairmen Pritam Singh and Png Eng Huat said: "We are disappointed with the verdict but we will consult our lawyers on our legal options and do not rule anything out."
NEA said last night operators of temporary fairs need a licence to address public health concerns. It took action against 16 unlicensed fair operators between 2011 and Oct 31 this year. These fairs were in Tampines, Toa Payoh, Simei, Clementi, Kovan City, Bukit Merah, Kampong Glam, Chinatown, Serangoon North, Rivervale Walk and Tanglin Halt.
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Oh! The unFAIRness of it all…..!
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AHPETC hauled up to court for organising fair in Hougang without licence / WP town council claims trial over unlicensed fair
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AHPETC auditors' disclaimer of opinion on financial statements
Auditor-General to study WP town council's accounts
AHPETC does badly in S&CC arrears, corporate governance in Town Council report
AHPETC yet to explain serious financial mismanagement: Desmond Lee
Oh! The unFAIRness of it all…..!