Court rejects guilty plea of man who live-streamed row with bus driver, after lawyer disputes ‘essence’ of harassment charge

• Nimal De Silva had pleaded guilty on Sept 1 to a single charge under the Protection from Harassment Act
• The Singaporean had verbally abused a bus driver, Chinese national Xu Bo
• The prosecution called De Silva’s actions “racist and xenophobic”, which was denied by De Silva’s lawyer
• District Judge Chee Min Ping has since rejected De Silva’s plea of guilt

SINGAPORE — A district judge on Thursday (Oct 21) rejected a 44-year-old man’s previous guilty plea of insulting and harassing a SBS Transit bus driver who had denied him entry for not wearing a face mask.

Nimal De Silva, a Singaporean, had pleaded guilty to a single charge under the Protection from Harassment Act on Sept 1, in which he had used insulting words and behaviour towards bus driver Xu Bo. 

The prosecution had said De Silva had employed “divisive, racist and xenophobic language disparaging” the 55-year-old public service worker’s race.

However, in a sentencing hearing on Thursday, De Silva’s lawyer, Mr Luke Netto of Netto & Magin LCC, argued that his client was not being xenophobic or racist when he insulted Mr Xu. 

Instead, Mr Netto said the act stemmed from De Silva’s unhappiness that Mr Xu, a Chinese national, was unable to speak English.

As result, District Judge Chee Min Ping said she was unable to accept De Silva’s plea of guilt as the harassment charge was “in essence” being disputed by the lawyer.

THE CASE

The altercation between De Silva and Mr Xu happened at around 6pm on Aug 19 last year, which led to then-Transport Minister Ong Ye Kung saying that there should be no excuse for anyone to physically or verbally abuse bus drivers.

“We may live in uncertain times due to Covid-19...The last thing we need on a bus is an uncooperative and abusive passenger," said the minister in a Facebook post on Aug 23 that year.

The incident started when De Silva attempted to board bus service 196 at a bus stop along Nicoll Highway.

Mr Xu, who was driving the bus, had refused De Silva entry as he was wearing a neck gaiter over his mouth instead of a face mask.

Deputy Public Prosecutor (DPP) Cheah Wenjie said Mr Xu did so because he was uncertain if the neck gaiter was compliant with SBS Transit’s mask-on policy aboard buses amidst the ongoing Covid-19 pandemic.

The Ministry of Health has since clarified that face coverings such as neck gaiters, bandanas, scarves and handkerchiefs should not be used in place of masks.

Unhappy, De Silva used the door cock button outside the bus to open its doors and gain entry, before he started the live stream.

In the course of confronting the driver, DPP Cheah said De Silva had uttered the following phrases:

• “This is the problem when you have China people working in Singapore”

• “You are going to go down, (expletive)”

• “These b******s are basically ah, playing punk. Let’s play punk together”

• “Speak English. You’re not in China right now”

‘BREAKDOWN IN COMMUNICATION’

Mr Netto said he did not dispute that his client had used abusive language on Mr Xu.

However, he took issue with how the prosecution took De Silva’s rant out of context, and characterised it as xenophobic and racist in nature.

As a consequence, this led to media reports that painted his client as a xenophobic individual which caused him to “suffer from prejudice as a result”, said Mr Netto.

He added that putting the events into context, De Silva was upset that Mr Xu was unable to explain in English why De Silva was refused entry.

The lawyer noted that the transcripts of the argument showed that De Silva had asked Mr Xu to speak English multiple times.

“There was a breakdown in communication from the get go,” said Mr Netto.

“It can be argued in this manner. If the bus driver was a Malay from Malaysia and my client can’t understand (what the driver was saying) and said, ‘Speak English, you are not in Malaysia’. That is not xenophobic.”

Mr Netto reiterated that De Silva was not saying Mr Xu should not be in Singapore, but rather, he should speak the same language. 

In response, DPP Cheah said the attempt to repaint and minimise the nature of De Silva’s insulting language “appears to come late, and appears to suggest the lack of remorse” on De Silva’s part.

He added that the only reason why De Silva kept repeating to Mr Xu to speak English was because he knew Mr Xu was from China and could not do so.

In any case, the prosecutor said “it is clear” that the insulting language used by De Silva was racist and xenophic.

“We can explain, but it’s commonsensical,” he said.

District Judge Chee said that she was concerned that the charge that De Silva faces was now being disputed, at least in part, by his lawyer.

“In making these submissions...It follows that these comments (made by De Silva) are alleged to not be insulting,” she said.

“I have not heard how comments such as, ‘Speak English. You’re not in China now’ can otherwise be construed as insulting, according to the defence's submission.”

As a result, the judge said she was not inclined to take De Silva’s plea as she found that it has been qualified, that is, points have been raised to contradict what was stated in court documents.

A pre-trial conference to discuss the case will be held on Nov 22.

Anyone found guilty of using insulting words or behaviour towards a public service worker in relation to the execution of the victim’s duty is liable to a fine of up to S$5,000, or a jail term of up to 12 months or both.