Sam Schwartz and the police, part 1

One utterly routine day, you open your letter box and find a letter from the police. It says that:

1. They refer to the case of Theft under such-and-such a law, that you committed at such-and-such a shop on such-and-such a date.

2. The Police have completed the investigation into this case and having considered the evidence and circumstances of the case, the Police have decided to administer a stern warning to you in lieu of prosecution.

3. You are hereby warned for the aforesaid offence.

4. Take note that under the Act you are liable for such-and-such a sentence if you had been charged.

You are flabbergasted. You did not shoplift. You have never even been in that shop. What do you do with such a letter?

So you break your piggy bank, take out a few hundred dollars and go to a lawyer. He writes a letter to the police asking the police to show what evidence they have that you shoplifted.

A few weeks later, the police write back to your lawyer. The letter says:

1. The police have investigated your client.

2. Upon completion of the investigation and in consultation with the Attorney-General's Chambers, a warning was administered to your client for the offence in lieu of prosecution. A statement was duly recorded from his client [i.e. you] a year ago.

What statement? Yes, you were at a police station giving a statement a year ago, but on a different matter. You had been beaten up. It wasn't about stealing from a shop. You brief your lawyer and he writes back to the police telling them that they have not answered his first letter asking them to show what evidence they had.

Silence for a few months.

Then a new letter from the police comes to you:

1. We wish to clarify that the offence is one of assisting Carlos Abdullah Magingyo [who is your friend, but who has not been charged or even received any communication from the police] in committing Theft under such-and-such a law at such-and-such a shop on such-and-such a date.

2. The Police have completed the investigation into this case and having considered the evidence and circumstances of the case, the Police have decided to administer a stern warning to you in lieu of prosecution.

3. You are hereby warned for the aforesaid offence.

4. Take note that under the Act you are liable for such-and-such a sentence and if you commit a similar offence again, we will not hesitate to prosecute.

You rub your eyes. Doesn't this letter just regurgitate what was said earlier? Your piggy bank is empty. You borrow some money from your sister and go to the lawyer again. The lawyer writes to the police reminding them that they have yet to respond adequately to his request for the evidence, and since the police cannot produce the evidence, his client [i.e. you] will reject and ignore the warning.

The police write back a few weeks later.

1. The Police have completed the investigation into this case and having considered the evidence and circumstances of the case, the Police have decided to administer a stern warning to his client [i.e. you] in lieu of prosecution. A statement was duly recorded from his client [i.e. you] a year ago.

2. In consultation with the Attorney-General's Chambers, we sent your client a Letter of Warning on such-and-such a date. We will now proceed to update our records to reflect that the warning was administered but your client had refused to accept it.

This may or may not be the end of the story, but it is enough for us to begin a discussion.

* * * * *

 
What on earth is this beast called a "warning"? What is its status in law? As far as I know, it has no status. It is not a conviction in a court of law. Yet, a record is being made on people without a shred of natural justice.

How can the police unilaterally issue a warning out of the blue? Where is due process? Where is the presumption of innocence?

There seems to be no process available to challenge it. When the lawyer wrote back, the police insisted they would "update their records" to reflect that the warning had been administered -- a statement that sounds like they are closing the subject and not entertaining further correspondence.

You may think, well, so long as it is not a conviction in court, you can just ignore it. I'd say it isn't so simple. That record is a potential minefield. Suppose you later apply for a scholarship, or you work in the civil service and are vying for a promotion to a position that requires security clearance, or you apply to the education ministry to be a teacher and the ministry wants to do a background check on your moral probity, or you work for a financial institution which wants to check your background. If any of them asks the police for a background report, the police may say that their files include the fact that you had been formally warned, in lieu of prosecution, for the offence of theft.

It is unlikely that your employer or scholarship giver will reveal to you what they learn, and so you don't get the scholarship, job or promotion for reasons mysterious to you. In short, you can't ignore this kind of thing. Yet, there is no process available for challenging it.

This is beside the question of costs to you in lawyers fees when you are completely innocent.

* * * * *

 
Is it all made up?

I am sure that many readers will think I made the scenario all up; it is too ridiculous to be real. Indeed, I made it up, in order to present in stark terms what is actually happening to a friend of mine, Sam Schwartz, who is the Managing Director of a gay sauna, One Seven. Read the letters below and you will see that the kafkaesque scenario above is all too close to reality.

But first, a bit of a prequel: The police raided the sauna on 25 April 2008, following which Schwartz was charged for three offences: possession of uncensored DVDs, possession of obscene DVDs and biting somebody. Part 2 will relate what happened with those charges (particularly the "biting" charge). At no time during that saga, which he thought ended with an aborted trial on 20 April 2009 (a year after the raid), did "massage" enter into the story.

Yet, two and a half weeks after the aborted trial, he received the first of what would be a series of letters. In the interest of bandwidth, I won't put up all the letters, but just the first one and the most recent two.

Here is the first one that came out of the blue:

This essay focusses on the alleged Massage Establishment offence, which is truly curious. There are forty thousand members of One Seven, mostly Singaporeans, who know and can attest to the fact that the club does not provide massage. It has never done so, in eight years of operation.

In response to this letter, Sam's lawyer wrote to the police asking them to show what evidence they had. The police's reply did not address this question in any substantial way. Instead, it made reference to a statement that Schwartz allegedly gave a year earlier. But bear in mind: firstly, that long-ago interview was in connection with another matter, secondly, it is inconceivable that Schwartz would have admitted to massage in One Seven when there has never been massage services there, and thirdly, our Banana Republic police procedure is that the police will not provide you or your lawyer with a copy of any statement they take from you.

Naturally, the lawyer was dissatisfied with a non-reply, and so it went ding-dong back and forth....

In September 2009, the police wrote to Sam again, saying virtually the same thing as the very first letter.... but there are slight differences (underlined in red), which makes you wonder how rigorously thought out the original letter was.

Again the lawyer wrote back, pointing out that the "clarification" that Schwartz allegedly assisted and abetted was meaningless as an answer to earlier questions, and that the police are still not providing any facts. Here's the relevant passage of the letter to the police by Sam's lawyer:

For good measure, the lawyer made it clear that One Seven had at no time provided public entertainment or massage:

Replying to the lawyer, the police wrote:

Footnotes

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Addenda

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