1) Claims by accused
I know this girl for 6 months, we enter a quarrel and there was
once i send her an SMS, whether she is interested in going to the
hotel to have sex with me just to irritate her. as she previously
insulted me.
at the point of sending that sms, I was never with her
physically nor have I went up to her place to harass her before. It
was an one time SMS.
I have no previous record and I feel remorse.
2) Classification
13A. —(1) Any person who in a public place or in a private
place, with intent to cause harassment, alarm or distress to
another person —
(a) uses threatening, abusive or insulting words or behaviour;
or
(b) displays any writing, sign or other visible representation
which is threatening, abusive or insulting,
thereby causing that person or any other person harassment, alarm
or distress, shall be guilty of an offence and shall be liable on
conviction to a fine not exceeding $5,000.
(2) It is a defence for the accused to prove —
(a) that he was inside a dwelling-house and had no reason to
believe that the words or behaviour used, or the writing, sign or
other visible representation displayed, by him would be heard or
seen by a person outside that dwelling-house or any other
dwelling-house; or
(b) that his conduct was reasonable.
3) My interpretation
The claims that both parties were in a quarrel (appeal 1) and
the victim previously insulted you (appeal 5) do not come under any
of the general exceptions for Penal Code, nor exists any special
exceptions for section 13A of the Misc Offences Act. Hence, they
only serves as a mitigating factor (together with appeal 6) and not
complete defence.
(i) Mens Rea: intent to cause harrassment
(threaten/disturb/annoy), alarm or distress (suffer)
Even if the victim did not take your SMS seriously nor felt
threatened/disturbed/alarmed/suffered, the act still falls under
the purview of this section if she was annoyed by the message. You
surely knew that such lewd message can cause annoyance to a
reasonable person, and intention can be infered if there was
knowledge that an act will likely result in a particular
effect.
(ii) Actus Rea: displays any writing which is abusive or
insulting, thereby causing that person harassment
The word “writing” includes any mode of representing or
reproducing words, figures, drawings or symbols in a visible
form.
The act still falls under the "harrassment" keyword (appeal 2,
3). Whether your SMS amounts to "abusive or insulting words" is a
question of facts, which the judge will provide interpretation
based on the facts and evidence presented.
(iii) Defence: inside a dwelling-house and had no reason to
believe that the writing displayed by him would be seen by a person
outside that dwelling-house
It is obvious that you believed that the SMS would be seen by
the victim outside the place of commission. Based on your reasoning
(appeal 4), it appears that you misinterpreted this provision.
(iv) Defence: that his conduct was reasonable
This provision is a question of facts. It is the onus of the
accused to present evidence to proof reasonability, which is rather
difficult even to attain a required balance of probability.
4) My advice
This offence is non-seizable. Hence, the victim had lodged a
magistrate report to seek proceedings. If the victim took all the
troubles of this lengthy process, she was obviously substantially
annoyed with your act.
The AG gave you a warning instead of proceeding with a charge,
and there is no appeal procedure nor conviction records for this.
You may refuse to accept the warning in writing to the AGC, and the
AG may respond by pressing charge or simply file for reference.
In summary, you may have committed an offence due to presence of
both mens rea and actus rea, subjected to the question of facts. It
is up to you to weigh your possible courses of actions with this
information.
