47-year-old Singaporean man with Indonesian citizenship convicted of failing to report for NS

Lawyers acting for Yao’s mother wrote to CMPB two days before his enlistment date, appealing for Yao to be dispensed from enlisting and saying that the family was prepared for Yao to renounce his Singapore citizenship and whatever rights and privileges he had.

The letter stated that Yao’s parents wanted him to retain his Indonesian citizenship as he intended to work in Indonesia and not in Singapore. The lawyers also highlighted that Yao would no longer be entitled to keep his Indonesian citizenship once he did his national service in Singapore.

Yao did not report to CMPB for enlistment on Jan 23, 1997. Several letters were exchanged after this. He completed his further education abroad between July 1997 and June 2001.

He wrote to the Singapore embassy in Indonesia in October 2003 to renounce his Singapore citizenship. The embassy wrote to ICA, which wrote to CMPB, which said it did not support the renunciation.

Yao’s mother made appeals to the Ministry of Home Affairs through a Member of Parliament, but ICA responded by reiterating that Yao was required to fulfil his NS obligation.

In January 2005, Yao married a Singaporean and registered his marriage using his Indonesian passport.

He applied for permanent residence in Singapore, but his application was rejected by ICA on the basis that he was still a Singapore citizen.

Between March 1997 and September 2021, Yao travelled in and out of Singapore.

He was arrested on Sep 1, 2021, at the ICA Visitor Services Centre for failing to fulfil his NS liability when he tried to extend a short-term visit pass. He was formally charged in February 2023.

DEFENCE’S CASE

Yao was defended by lawyers Mr Sunil Sudheesan and Ms Joyce Khoo from Quahe Woo & Palmer.

They argued that the state, by issuing Yao a visit pass each time he entered Singapore with his Indonesian passport, had accepted that he was an Indonesian citizen.

Both ICA and the Ministry of Defence (MINDEF) knew that Yao held an Indonesian passport, but he was allowed to travel in and out of Singapore with it between 1997 and 2021 without any enforcement action, said Mr Sudheesan.

He argued that, based on representations allegedly made by ICA in November 1983, Yao honestly believed that his Singapore citizenship would be cancelled when he turned 22.

Yao and his mother also testified that Yao’s mother had met with two CMPB officers in February 1999 to discuss an application for an exit permit for Yao’s brother.

Initially, the CMPB officers said they were required to put up two bonds, one for Yao and one for his brother, because of Yao’s outstanding NS liability, said Yao’s mother.

The following day, she claimed the CMPB officers told her the bonds were no longer necessary and that the issue concerning the exit permit application for Yao’s brother was resolved. Yao thus had the impression that he had no NS liabilities.

The prosecution said there was no evidence that this meeting had occurred.

The defence argued that the state’s actions created a substantive legitimate expectation that Yao relied on, and which provides a legitimate basis to exonerate him.

The defence also claimed that after Mar 23, 2004, Yao’s mother met with a now-deceased person in Jakarta who told her that the NS issue would be resolved.

This person cannot be named due to gag orders imposed by the court.

The prosecution similarly argued that this meeting was “fictitious” due to the lack of objective evidence and the defence witnesses’ “shaky and incredible testimonies”.

Because no enforcement action was taken by MINDEF against Yao until his arrest, Yao thought he no longer had any outstanding NS liability, the defence said.

PROSECUTION’S CASE

The prosecution argued that the defence’s arguments were premised on “misconceptions, unsubstantiated meetings” and “speculative assertions of representations that are plucked out of thin air”.

They said Yao had a “proclivity for making self-serving decisions” and “blaming others for his failings”, pointing to how he deliberately concealed information about a medical condition he had in his pre-enlistment medical screening.

He first resorted to accusing MINDEF of misleading him into believing that he was within the PES A range when he had a heart defect and could not take part in strenuous activities, said Deputy Public Prosecutors Tay Jia En and Clara Low.

When confronted with the fact that he had never been medically exempted from NS, he blamed MINDEF for having “messed up”, said Mr Tay.

He said it later emerged after further probing that the only deception was by Yao, who did not disclose his heart defect to the medical examiner for fear of adverse impacts on his insurance in future.

Yao declared that he did not have any medical problems in the pre-enlistment medical screening questionnaire. Mr Tay said Yao demonstrates that he has “no qualms in being dishonest to benefit himself”.

He added that Yao has an “unrelenting tendency to cast unfounded aspersions” on government officials.

Yao and his mother also have a “blatant disregard” for Singapore law, when his mother testified that what was important to an Indonesian citizen was not Singapore law but Indonesian law, said the prosecutors.

They added that Yao’s mother was “an evasive and combative witness prone to going to extreme lengths to villainise Singapore and its government agencies”.

JUDGE’S FINDINGS

District Judge James Elisha Lee found that the doctrine of “substantive legitimate expectation” as cited by the defence was not applicable to this case.

This was for reasons including “the magnitude and importance of the role of NS to Singapore’s national security and survival”.

Yao and his mother would have been fully aware that CMPB’s position, made clear to them in 1997, was that Yao had to serve NS notwithstanding his Indonesian citizenship.

Against this backdrop, it was not reasonable for Yao to rely on a “vague intimation” that the issue would be resolved to form any legitimate expectation that he was no longer required to serve NS, said the judge.

He rejected the argument that Yao was labouring under a mistake of fact that he had been regarded as an Indonesian foreigner by Singapore.

“The accused knew that although he holds Indonesian citizenship, he is also a Singapore citizen. CMPB had also made it manifestly clear to him that he is liable for NS as such,” said Judge Lee.

“The Indonesian Citizenship Law merely prescribes that a person will lose his Indonesian citizenship if he serves in the military of another country. It neither commands nor empowers anyone to act in any manner,” added the judge.

“The accused, in electing not to report for enlistment, had merely sought to avoid the consequences under the Indonesian Citizenship Law. That is not the same as being under the command or empowerment of the law to act in the way the accused did.”

Judge Lee said Yao cannot “by any stretch” be considered to have acted in good faith, as he had been informed of his NS liabilities from the outset by CMPB.

He found that the offence of failing to report for enlistment into full-time NS was a strict liability offence. This means that the prosecution needs only to prove that the act was done, and need not prove the intention.

He convicted Yao of the single charge and adjourned mitigation and sentencing to April.

He faces a jail term of up to three years, a fine of up to S$5,000 (US$3,900), or both.

On top of the charge he contested, Yao has 14 counts of failing to present his Singapore passport to an immigration officer when he arrived in Singapore. These offences were stood down for the time being while the trial went on.