SMRT Bus Drivers’ Strike: Liu Xiang Ying and Gao Yue Qiang’s Mitigation Plea

Former SMRT bus drivers, He Jun Ling, Gao Yue Qiang, Liu Xiangying, and Wang Xian Jie, were sentenced to jail for participating in a strike against the transport operator in November 2012. He was sentenced to seven weeks jail while Gao, Liu and Wang were sentenced to six weeks jail. The following is the mitigation plea submitted by Liu and Gao’s lawyers in court today, 25 February 2013.

IN THE SUBORDINATE COURTS OF THE REPUBLIC OF SINGAPORE

 MAC 11658/12

THE PUBLIC PROSECUTOR

AND

LIU XIANG YING

(FIN: G8172133K)

MITIGATION PLEA

A) 12 May 1955 “Black Thursday” – Hock Lee Bus Riots

1. The Hock Lee bus strike began peacefully on 23 April 1955 but escalated into a violent riot on 12 May in which 4 people were killed and 31 injured.

2. During the strike, large numbers of dismissed bus workers locked themselves in the Hock Lee garages at Alexandra Road and picketed at the gates.

3. On 10 May, the pickets rioted when they were forcibly removed by the police. On 12 May, they were joined by several lorry loads of Chinese school students and the violence that followed led to the death of two police officers, a journalist and a student.

4. On 13 May, the government closed three Chinese schools for a week and ordered the expulsion of some of the ringleaders. On 14 May, the Hock Lee bus strike was settled by government arbitration on terms generally favourable to the strikers.[1]

5. Following this incident, Parliament sat in September 1955 to pass the Preservation of Public Security Bill. The then Chief Minister Mr. David Marshall in his speech on 21st September 1955 at column 695 observed:

Shortly after His Excellency’s speech, Sir, we watched efforts to fan and twist a perfectly legitimate trade dispute at the Hock Lee Bus Depot into an instrument for mob violence which exploded in the horrible riots and brutal murders of May 12th. That was our first introduction to the technique of a group of hardened persons, loyal to a foreign ideology of tyranny, who, without regard to human suffering, seek the creation of conditions of chaos and the violent overthrow of a democratic form of government, in order to bring the people of this territory under their control.

We next witnessed, not long after, another legitimate strike, this time at the Singapore Harbour Board, being twisted and tortured in an effort to repeat the success of the Hock Lee riots. Strenuous efforts were made to paralyse our economic life. It did not matter how much the pitiable, misled worker suffered, if only these malevolent organisers of chaos could succeed in their aim of overthrow of the Government by mob violence and the creation of conditions which would bring about the supremacy of their brand of ideological tyranny. But for the existence of some sincere trade unionists in the Trades Union Congress, in the Naval Base, and in the docks, there could have been an even greater holocaust than the Hock Lee riots.[2]

6. It was also observed that the then Chief Minister in introducing the Bill, cited the manipulation of groups known as “topengs” (pseudo trade unionists) who would twist and fan a legitimate strike for their own political and ideological purposes. An example of this can be found at column 696:

It is a technique, Sir, of the Communists throughout the world to infiltrate trade unions and to work ostensibly for the welfare of the labourer in order to gain his confidence. Then, when the time is considered ripe, they sacrifice him. The Malays, Sir, have a word for this type of pseudo-trade unionists. They call them “topengs”.

7. The Bill therefore appears to be targeted at limiting and/or eradicating the activities of these “topengs” by flushing them out. This was clearly explained and clarified by the Chief Minister at column 703:

Another criticism is that this power of detention is extended from that against persons who are a threat to public security, to persons who are a threat to the maintenance of essential services. This extension which follows our neighbours’ provisions was introduced in order to protect the country against possible acts of sabotage and in order to protect the worker against the type of illegal general strike with which he was saddled and under which he suffered last June. We consider that the worker should be protected from the “topengs”, the pseudo-trade unionists, when they seek to sacrifice him and the community. We consider that the community should be protected against illegal strikes in essential services, and the operative word is “illegal”. There cannot be and there never will be any question of the utilisation of these powers against persons who are lawfully pursuing their constitutional right to strike after proper notice has been given, even in essential services.

8. Your Honour can now clearly see that Part III of the Criminal Law (Temporary Provisions) Act[3] titled “Illegal Strikes and Lock-outs in Essential Services” was clearly targeted at the “topengs”, and not workers who were genuinely unhappy with their working conditions.

B) “Hotheads and irresponsible leaders”

9. In the Second Reading of the Criminal Law (Temporary Provisions) Bill on 22nd September 1955[4], we have the benefit of the clear and succinct comment by Mr Lee Kuan Yew himself on the rationality of the requirement for the 14 days’ notice. At column 763, he observed that:

I think it is right, too, that in these services where so much more is at stake than the interests of the employers and the employees, there should be a compulsory period during which efforts at conciliation can be made and during which the full implications of a strike can be appreciated. In these days, unfortunately, we have hot-heads amongst our labour leaders who, for their own ends, will provoke strike action before all efforts to reach agreement by negotiation have been tried and exhausted. Their technique is to reach a quick snap decision and force an immediate strike. Surely these tactics should not be allowed in essential services, and the l4-day period may well give time for wiser and more moderate counsels to prevail over irresponsible leaders without, I suggest, doing any damage to the real interests of the workers.

10. From the above speech by Mr. Lee Kuan Yew, it is clear and apparent that Part III of the CLTPA was legislated to target “hotheads” and “irresponsible leaders”, who would make no bones to disregard proper dispute resolution channels even if that existed. We humbly submit that where the offender is an uninformed and aggrieved worker who has exhausted all avenues of negotiation with his employers, and where the employer who is endowed with a professional department, fails to take his grievances seriously – this would be a big mitigating factor.

C) Were Liu Xiang Ying and Gao Yue Qiang such “topengs”, “hotheads” or “irresponsible leaders”?

11. We have prepared and appended herein Schedules A and B for Liu Xiang Ying (“Liu”) and Gao Yue Qiang (“Gao”) respectively.

12. From the individual Schedules, it can easily be concluded that Liu and Gao were not “topengs”, “hotheads” or “irresponsible leaders”.

D) The presumption of SMRT as a “responsible employer”

13. Your Honour, we would also humbly submit that in mitigation, the role of SMRT as a “responsible employer” must be taken into account. To this end, we reproduce the speech of Mr. W.A.C. Goode in the 22nd September 1955 Parliamentary Debates at column 763:

I would emphasise that this Part of the Bill does not, of course, prohibit strikes. It only requires that 14 days’ notice should be given so that some sort of emergency arrangements can be made to ensure a minimum service necessary for the well-being of the public. I expect it will be argued that this Part is restriction on trade union activities. Of course, that is so, but it is our view, Sir, that workers in these essential services, and indeed the Government, have an obligation towards the public which must be recognised, because a strike in these services does not only affect the workers in the industry, but it affects the daily life of everybody in the community. A strike in these services can only be carried out at the cost of harm to the public. These workers, after all, are, in the main, the employees of responsible organisations – the Government, the City Council, statutory authorities – organisations which can be expected to follow a good employer policy. They are primarily concerned with service to the public rather than with seeking profit, and their general policy is considerably under the direction of the Government.

14. At columns 766 – 767, Mr Lee Kuan Yew succinctly put:

As more or less a trade unionist myself, one who has been in close association with the unions, I cannot, of course, subscribe to the view the Chief Secretary has expounded, that the leaders in many of these unions in the essential services are irresponsible hot-heads. Very often, my feeling was that the venerable and elderly managers, who met the workers over trade disputes, were quite ignorant and foolish people who did not know that they were dealing with a human problem. These people are only concerned with their workers as cogs in operating their purely mechanical system for which they are responsible.

15. It is clear therefore that when Part III of the CLTPA was legislated there was a presumption that the employers were expected to be good employers, who are not ignorant and foolish people who would be sensitive to dealing with a human problem. The troublemakers would then be people who would instigate a strike despite the fact that the employers are good employers, and who know how to deal with a human problem.

16. SMRT has not come out of this incident unscathed. In fact, and from the transcript of the townhall speech given by its new CEO, Mr. Desmond Kuek[5], he admitted:

It was most unfortunate that events and sentiments had culminated to the point of an illegal strike. All this could have been avoided had our Service Leaders (SLs) used the right and proper channels of communication and feedback to voice any unhappiness. At the same time, we have acknowledged that our managers and supervisors down the line could have been more sensitive and responsive to your needs we will address this shortcoming with priority.

17. Liu and the others were also consigned to live in dormitory conditions which could be better. This is again admitted by SMRT:

You have given us feedback about your living conditions in the dormitories. I have visited your rooms and surroundings recently and agree with you that things can certainly be improved. It should have been seen to sooner by the management. We will set up a facilities management team to look into such matters more responsively, and also provide timely feedback to the dormitory operators for the areas that they are responsible to maintain in good condition.

We have received your inputs about the hot and stuffy conditions in the dormitory rooms, and noise from the surroundings and other workers, especially as work shift timings are different. This affects your rest for your next shift. As for bed bugs, fumigation of the dormitory rooms was conducted last month, and again last week. It appears to be a more persistent problem and we will continue to monitor and act on this. Repairs to defects and remedial works on broken fittings have already been made to those affected rooms.

18. SMRT in their defence have stated that Liu and the others did not use proper channels to make their complaints known. However, Mr. Desmond Kuek clearly admitted “ …that our managers and supervisors down the line could have been more sensitive and responsive…”. SMRT’s defence is not a true defence. It was actually only a preface which seeks to mitigate and qualify the admission already made. I respectively submit this is classic “double speak”.

19. It is also no defence for SMRT to say that they did not know of these problems before the “strike”. Even if that were true, it points an accusing finger at SMRT for failing to implement proper systems and procedures to keep these issues in check. The fact that so many problems and issues are only now attended to after the “strike” speaks volumes about how much weight should be put on such a statement by SMRT that the “strikers” did not use proper channels to air their grievances.

20. The following excerpts from a Straits Times news report seals the point that the incident arose not out of the workers not using proper channels, but that of insensitive and unresponsive people in management. It appears that this may well be the case of – at the risk of repeating Mr. Lee Kuan Yew – “…venerable and elderly managers, who met the workers over trade disputes…” being

“…quite ignorant and foolish people who did not know that they were dealing with a human problem”:-

THERE has been a major shake-up at SMRT Corp’s bus operations in the wake of last November’s illegal strike by its drivers.

Besides a reshuffling at the top, under-performing staff have been counselled, redeployed or handed warning letters.

“A small number” of them will be leaving the company, chief executive Desmond Kuek told The Straits Times yesterday.

“This is because they did not exercise their management or supervisory responsibilities. They did not carry these out well,” he said, declining to say how many were disciplined.

To steer the company back on track, Mr Kuek, who took over the top job only the month before the strike happened, said he wanted to beef up its human resources to ensure the company better manages its 2,000-plus bus drivers, including 450 Chinese nationals.

Roles and responsibilities of managers and supervisors have been redefined so they are “more multi-functional and less siloed” in dealing with issues, he said.

“It allows bus captains to approach any member of the management supervisory team rather than look for that one particular supervisor who used to be directly responsible for their well-being.”

Part of their new job scope involves reviewing bus drivers’ duty rosters, which he admitted “has been an area of some concern”, and improving communication with all drivers.

He said the latest overhaul will ensure management “spends more time understanding the issues and walking the ground, meeting the needs and concerns of all the bus captains”.

After the strike, the company conducted an internal investigation and instituted the changes.

Mr Kuek had admitted, in a Straits Times interview last December, that the illegal strike could have been avoided if supervisors had been more “sensitive, attentive and responsive” to the bus drivers’ complaints….[6]

E) An illegal strike is a technical offence, but the spectrum of motives and conduct of employees and employers are highly relevant mitigating factors

21. From the literal reading of sections 6(2)(a) and 7 of the CLTPA, which is reproduced hereunder, it is clear that the failure to give the 14 days’ notice is at the heart of the illegality. By the use in section 7 of a deeming provision, it is clear proof that the “illegality” is a legal fiction.

Restrictions on strikes and lock-outs

s. 6 (2) No workman employed in any essential service, not being an essential service specified in subsection (1), shall go on strike —

(a) unless at least 14 days before striking he has given to his employer notice of intention to strike as provided by this section;

Illegal strikes and lock-outs

A strike or lock-out shall be deemed to be illegal if it is commenced, declared or continued in contravention of section 6, or of any provision of any other written law.

22. That an illegal strike is essentially a technical offence is supported by W.C.A. Goode’s statements made in the 22nd September 1955 Parliamentary Debate at column 763:

I would emphasise that this Part of the Bill does not, of course, prohibit strikes. It only requires that 14 days’ notice should be given so that some sort of emergency arrangements can be made to ensure a minimum service necessary for the well-being of the public.

23. The above excerpt also reveals the purposive intent behind the need to give 14 days’ notice, and that is to ensure that arrangements can still be made for a minimum service to be made available for the well-being of the public.

24. We would submit that from all the above excerpts taken from the Parliamentary Debates, our legislators did contemplate that there was a full spectrum of conduct, motives and circumstances which must be taken into account when deciding on the gravity of the offence.

25. For example, on one extreme are the “hotheads” and “irresponsible leaders” who refuse to explore other avenues of resolution. And on the other are low-waged, lowly educated, uninformed foreigners who have tried to the best of their abilities to resolve their labour disputes through proper channels, and were simply shunted.

26. Yet another example is the Hock Lee bus riot situation where the entire nation’s public transport system was crippled, and even resulted in deaths and injuries. This differs greatly from the present strike, which was a peaceful demonstration involving only a fraction of transport workers, and where the disruption to public transport system was very limited.

F) Consequences of the strike on 26th and 27th November 2012

27. Today, public transport is far more sophisticated. It comprises an interlinking network of services that complement and support one another, so much so that should one service fail for whatever reason, there are multiple alternatives which are available to the public.

28. Even within the public bus transport service, there are two companies running the service. In the present case, the strike is within the confines of one of them. Even within the confines of SMRT Buses, we are only dealing here with Chinese bus drivers, and even at that, only a fraction of the total number. It was reported in a Straits Times article that only 45 relief drivers from SBS were required and other private drivers. [7]

29. It will be farfetched in today’s terms for Prosecution to submit that the present strike could in any way cripple or paralyze our national public transport.

30. The requirement of a minimum service still being made available to the public as highlighted in W.A.C. Goode’s excerpt in paragraph 13 above has not in fact been breached by virtue of the strikes. Therefore it cannot be said that the strike was so far reaching as to disrupt the nation’s transport system.

G) Comments on Bao Fengshan’s sentencing

31. Bao did not have the benefit of counsel representing him when he pleaded guilty. Hence it is unfortunate that the Court was not fully apprised of all legal arguments available to Bao in his sentencing.

32. We understand from the press reports that at the sentencing of Bao, the Prosecution drew an analogy of unlawful assembly with an illegal strike.[8] Respectfully, this analogy is wrong.

33. At first glance, it would appear that there are similarities between an unlawful assembly and an illegal strike because both involve the gathering of a group of people to further a common objective. However in the case of an unlawful assembly, the common objective is illegal. Whereas in the case of an illegal strike, the common objective is in fact legal, but the whole action is rendered illegal by virtue of the failure to give the 14 days’ notice. The latter is a technical offence whereas the former is a substantive offence.

34. It was reported that the Court in the Bao Fengshan matter took the view that Bao’s actions were “calculated to cause disruption and inconvenience in the provision of transport services”, which had the potential “to severely affect the daily lives of all commuters”.[9] Respectfully, we are of the view that apart from seeking redress from SMRT, there were no other calculations involved. The ad hoc nature and lack of organisation in their plan do not suggest that any bigger scheme could have been achieved.

H) The roles of Liu, and Gao were limited

35. A mitigating factor peculiar to Liu is that, as apparent from the Statement of Facts, his involvement in the conspiracy was the least among the 4 accused persons.

36. His involvement was only to the extent that he had on 23 November 2012, upon receiving his pay, chanced upon Gao and Wang, and they started to discuss their unhappiness over the unfairness in their terms of employment and how they could seek redress. Liu was of the view that based on what he had seen of past events, individual efforts to seek redress would be useless. They therefore came to agree that they needed a group to come together to make a difference. Liu’s suggestion was that they should gather as many Chinese bus drivers who were working shift to come together, and he also suggested that if the numbers were not sufficient, other Chinese bus drivers could also join them by taking medical certificates (“MCs”).

37. On 24 November 2012 Liu, Gao and Wang met up again during their routine morning jog. They continued talking about the number of people each of them could gather.

38. Beyond the aforesaid, Liu did not substantively involve himself any further.

39. Another mitigating factor is the modus operandi that was proposed for the strike to take place. The proposal was for the Chinese bus drivers to take MCs as opposed to an outright defiant refusal to go to work. This is significant in 2 respects. Firstly, it shows that the conspirators were not outwardly defiant in that they were still mindful and respectful of the parameters of their employment terms. Secondly, taking of MCs is not a sure thing as it would be entirely contingent on the discretion of an independent third party – a doctor. Inherent in their unsophisticated plan is that there would be external factors that would limit the magnitude of the planned strike. It could therefore never have been in the contemplation, calculation or deliberation of the conspiracy that the strike would have the effect of crippling the public transport service or otherwise disrupting it to any significant degree.

I) Conclusion

40. Despite the fact that Liu and Gao felt that they were unfairly treated by SMRT, they acknowledge that their actions did cause some inconvenience to the public transport network in Singapore and are deeply remorseful.

41. For this and the reasons above, we are praying that the Court be lenient to Liu and Gao, and to impose a non-custodial sentence on them. However, if the Court is not minded to impose a non-custodial sentence, we humbly submit that any custodial sentence should not exceed a term of two weeks.

Dated the 25th day of February 2013

Counsels for Liu Xiang Ying and Gao Yue Qiang

SCHEDULE A (Liu Xiang Ying)

1. Liu Xiang Ying is a Chinese national from Chifeng (Inner Mongolia). He is married and a sole breadwinner, with one daughter who is nine years old.

2. In or around October 2007, he saw a newspaper advertisement for job openings as a bus driver in Singapore. At the time, he was in a poor financial situation and desirous to provide a better life for his family. He decided to come to Singapore after learning from a Chinese agent that as a Singapore bus driver, his basic salary would be S$1050 per month.

3. The other details included work hours – it would be a 5 days work week, and anything in excess of 44 hours would be considered overtime. He could work on rest days, and pay for work on the first rest day is considered overtime and will be paid at 1.5 times the usual wage per day, while pay for work done on the second rest day would be paid at double rates. He was also told by an SMRT representative present at the Chinese agency that their pay would be the same as Malaysian drivers.

4. Satisfied with the terms, he registered his interest with the agency, paid about 42,000 RMB and submitted his documents.

5. When he reached Singapore, however, he would find out that SMRT had changed a series of terms from what was represented to him when he was in China.

6. It could be argued conceivably that these changes to his contractual terms did not contravene any law. However, the effect of the change would mean a substantial reduction of his wages as against that which was promised to him before coming to Singapore. It would appear that Liu was justifiably upset.

7. We are further told that Liu and the other bus drivers approached SMRT several times about these grievances, and SMRT merely gave them platitudes and noncommittal replies.

8. The following are instances where Liu utilized the proper channels for assistance:

9. Liu called SMRT’s human resource personnel, a Mr. Song Hai Ruan, to ask why he never received his “hua hong” (or bonus, which is usually paid in July based on a combination of company performance and worker performance). It was already past July and the Malaysian and Singaporean drivers had already received theirs. SMRT’s HR replied that they would be given the “hua hong”, but only after two years. This was only applicable to Chinese bus drivers, and their reasoning was that if the “hua hong” was given now, they would spend it.

10. Around December 2009 – January 2010, after a meeting with SMRT personnel where they asked for their unpaid “hua hong” and were not given satisfactory replies, Liu and others tried calling SMRT managers for two or three days but were ignored.

11. In 2010, Liu was to join about ten other colleagues to lodge a complaint with the Ministry of Manpower but did not go in the end because he was working at the time. They met the following day for a discussion with SMRT personnel but nothing was resolved at the meeting.

12. Liu and others requested to see Saw Phiak Haw, former President and CEO of SMRT Corporation because conditions in the dormitory became unbearable.

13. In May 2012, SMRT unilaterally imposed a 6-day work week on them instead of a 5-day one (which directly impacted their ability to earn a higher wage based on overtime rates), without explaining the change to them. SMRT gathered the Malaysian and Singaporean drivers to explain the new scheme but Chinese workers were only notified with a letter of the changes. Liu approached his supervisor for an explanation of the changes but the supervisor only said that he “didn’t know”.

14. In January 2013, several other bus drivers wrote a final letter to MOM hoping that they would take heed to their grievances. The said letter is appended hereunder as Exhibit 1.

SCHEDULE B (Gao Yue Qiang)

1. Gao Yue Qiang is a 32-year old Chinese national from Liaoning province, where he also worked as a bus driver. He is married with one young son, and is the sole breadwinner of his family.

2. Gao’s parents, who had all along objected to Gao coming to work in Singapore, have become especially worried after hearing about what had happened. They are also in ill health.

3. Our instructions are that Gao has no desire to deflect blameworthiness for the extent of his involvement in the conspiracy. He accepts that by his actions, he has offended against the state. He only wishes to say that he was motivated by what he had perceived were genuine instances of injustice and inequality and his intention was only to seek redress. He did not think that his actions would result in serious consequences.

4. Gao is otherwise a law-abiding person with an unblemished record. His actions were a result of his folly and ignorance and not because of malice or ill-will. He hopes that the Court will be lenient with him and allow him to return home to his family as soon as possible and close and leave this unfortunate chapter behind him.

[1] National Library Board Singapore 2005, Singapore Infopedia article, Hock Lee Bus strike and riots

[2] Preservation of Public Security Bill, 21 September 1955, Session No. 1, Vol. 1, Sitting No. 14

[3] Cap. 67, Rev. Ed. 2000, (“CLTPA”)

[4] Criminal Law (Temporary Provisions) Bill, 22 September 1955, Session No. 1, Vol. 1, Sitting No. 15

[5] Transcript of CEO’s Address to PRC Service Leaders, Townhall Meeting 3 December 2012

[6] Jermyn Chow and Royston Sim, SMRT boss shakes up bus ops management, The Straits Times, 15 February 2013

[7] Ibid.

[8] First bus striker in strike convicted, The Malaysian Insider, 4 December 2012

[9]

Ibid.

Related Links:

‘Former SMRT bus drivers sentenced to at least 6 weeks’ jail for strike’, Yahoo! News, February 25, 2013.

‘Chinese bus drivers sentenced to between 6 and 7 weeks in jail in Singapore’, Xinhua, February 25, 2013.

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