Case Summary and Outcome

The Singapore Court of Appeal dismissed appeals on conviction, sentence and costs brought by the first two persons to be convicted for scandalising contempt under s 3(1)(a) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016). The first appellant had posted on Facebook to the effect that Malaysia’s judges were more independent than Singapore’s for cases with political implications. The second appellant had published a post containing a link to the first appellant’s post and stating that by charging the first appellant for scandalising the judiciary, the Attorney-General only confirms what he said was true. The Court reasoned that a reasonable person reading the posts would conclude that they posed a risk of undermining public confidence in the administration of justice and that the first appellant’s post objectively and plainly entailed a direct attack on the independence and integrity of Singapore’s Judiciary. The Court also dismissed part of an appeal by the Attorney-General in respect of an apology order against the appellants, but allowed the part of the appeal in respect of a cease-publication injunction against the first appellant.

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Facts

On April 27, 2018, the first appellant, Wham Kwok Han Jolovan (“Wham”), published a post on his Facebook profile containing the following statement: “Malaysia’s judges are more independent than Singapore’s for cases with political implications. Will be interesting to see what happens to this challenge.” The post also included a link to an online article titled “Malaysiakini mounts constitutional challenge against Anti-Fake News Act”. The post was accessible to the public, including non-Facebook users.

On May 6, 2018, the second appellant, Tan Liang Joo John (“Tan”), published a post on his Facebook profile containing the following statement: “By charging Jolovan for scandalising the judiciary, the AGC only confirms what he said was true.” The post included a link to Wham’s profile. Tan himself had political aspirations and was willing to accept an objectively harsher sentence of several days’ imprisonment rather than bear a fine, since disqualification to stand in the General Election would set in after a fine of SGD 2,000 or more but only for imprisonment terms of at least one year and Tan’s imprisonment term would not cross that threshold.

The Attorney-General filed originating summonses seeking leave to apply for an order of committal separately against Wham and Tan. After leave was granted by the High Court, Wham published a post on his Facebook profile commenting on the decision to prosecute him for scandalising contempt, stating that he had made the original statement “based on several Malaysian cases I had read in which the courts upheld basic rights to freedom of expression and assembly and overturned several government decisions” and “also based on my reading of Francis Seow’s book: Beyond Suspicion? The Singapore Judiciary, published by Yale University’s Council on Southeast Asian Studies.” He added that “Seow was not prosecuted by the government for publishing [the book].”

Subsequently, on the day before the High Court’s judgment was due to be delivered, Wham published a further post on his Facebook profile, mainly to state that “Justice Woo Bih Lih [sic] will deliver his judgment tomorrow at 10am in High Court Room 5C. I will be there with my lawyers”.

On October 9, 2018, at first instance, the High Court convicted the appellants of scandalising contempt contrary to s 3(1)(a) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (AJPA), sentenced each to a fine of SGD 5,000 with one week’s imprisonment in default, and ordered them to pay the Attorney-General’s costs fixed at SGD 5,000 in addition to disbursements. It also dismissed the appellants’ challenge to the constitutionality of s 3(1)(a) AJPA which creates the offence. It declined, however, to grant the Attorney-General’s application for an apology order under s 12(3) AJPA or a cease-publication injunction under s 9(d) AJPA.

On the same day, Wham published a further post on his Facebook profile stating that he and Tan had been convicted and that a separate hearing for sentencing would be scheduled. He also quoted the original statement in respect of which he had been convicted.

At the hearing for sentencing and costs, Tan indicated he would not apologize for his post but would remove it, and he did remove it the following day. Wham, on the other hand, did not take down his post. They were both sentenced on April 29,2019 and filed their respective appeals.

On January 8, 2020, Wham published a post on his Facebook profile giving information about the hearing of his appeal, quoting the original statement in respect of which he had been convicted, stated brief details of Tan’s conviction, and stated that in the following weeks he would publish posts about the history of the law on scandalising contempt.

On January 20, 2020, Wham published a further post repeating details of the appeal hearing, and quoted a past statement by the Prime Minister concerning freedom of expression and the laws of sedition, libel and contempt of court. He asserted that the application of the laws of sedition, libel and contempt “violate not only our constitutional rights but international free speech standards”. He further stated: “My criticisms [of the Singaporean judiciary] were temperate and moderate; I did not allege that our judges were corrupt, incompetent, or lacked independence.” He then commented briefly on international case law and the law of contempt in other jurisdictions, and argued that his statement “can hardly be said to have breached those standards”. He further criticized the decision to prosecute him by stating that the World Bank compares judicial independence of different countries as well, and that Tan had not himself repeated the contents of Wham’s statement. He further stated that he refused to apologize for the statement.

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Decision Overview

Sundaresh Menon CJ delivered the judgment of the Court. The main issues before the Court were whether it had been established beyond a reasonable doubt that Wham and Tan were liable for scandalising contempt, and if so, what the appropriate sentences were for each of them.

The Court of Appeal stated that the offence of scandalising contempt in s 3(1)(a) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (AJPA) consists of two limbs. The alleged contemnor must have scandalised the court by intentionally publishing any matter or doing any act that (i) imputes improper motives to or impugns the integrity, propriety or impartiality of any court; and (ii) poses a risk that public confidence in the administration of justice would be undermined.

The first limb

Counsel for the appellants conceded that the first limb was satisfied in respect of Wham’s post. He accepted that its objective interpretation was that “the prospects of success in the Malaysian constitutional challenge referred to in the post were better in Malaysia than if the case were heard in Singapore because Malaysian judges were more likely, in cases with political implications, to decide on the basis of the merits of the case” (emphasis in original). The “irresistible conclusion” is that Singapore judges would decide other than on the basis of the merits of the case, and therefore were not independent. The Court remarked that such an assertion was “among the most serious attacks that one can make against courts and the administration of justice”. It added that it was “patently untenable” to argue that Wham’s post was merely comparing the independence of two judiciaries and did not necessarily mean that Singapore’s judiciary was not objectively independent.

The first limb was also satisfied in respect of Tan’s post. This followed from the finding that Wham’s post was contemptuous, since it affirmed the allegation made in it about the Singapore judiciary. Given this, the Court did not find it necessary to evaluate whether Tan’s post had resulted from an outburst of anger or emotion at the time or that it additionally attacked the Attorney-General on top of the Singapore judiciary.

The second limb

The Court held that the “risk” test in the second limb of s 3(1)(a) AJPA was intended by Parliament to differ from the common law “real risk” test. Parliament had intended to “pre-empt hair-splitting and fine distinctions as to the level of risk that had to be established in order to satisfy the test” (emphasis in original). This was part of a policy choice to “come out strongly in favour of upholding and protecting the integrity and standing of the Judiciary” [para. 36].

Accordingly, the Court held that “a risk may be seen as either objectively existent or objectively non-existent”, and that qualitative labels such as “remote”, “fanciful”, “illusory” or “imaginary” were not ultimately helpful. A risk is “objectively existent” if “reasonable people would consider that it bears guarding against”. Conversely, a risk is “objectively non-existent” if “reasonable people would not think it needs to be guarded against”. The question that courts must ask, therefore, is: “Is the risk one that the reasonable person coming across the contemptuous statement would think needs guarding against so as to avoid undermining public confidence in the administration of justice?” (emphasis in original) A court may consider both the content and context of the statement in answering the question.

Applied to Wham’s post, the post did pose a risk of undermining public confidence in the administration of justice. A reasonable person coming across the post would conclude that there is a need to guard against the risk that public confidence in the administration of justice would be undermined as a result. It was relevant that the content of the post “objectively and plainly entails a direct attack” on judicial integrity and independence, that the post was accessible to the world at large, especially to Wham’s 7,000-odd followers on Facebook, and that Wham held himself out as a commentator on social affairs who is knowledgeable on such matters. While Wham denied the truth of the third factor, the Court held that Wham’s published intention to share the history of the law on scandalising contempt on his Facebook profile on January 8, 2020 confirmed it.

The Court further stated that there was no basis for considering that the post, by virtue of its having been published on a Facebook page, would be regarded as fanciful and self-evidently unreliable so as not to give rise to a risk of undermining public confidence in the administration of justice.

Applied to Tan’s post, the Court held that the post did pose a risk of undermining public confidence in the administration of justice, for broadly the same reasons as those that applied to Wham’s post.

Fair criticism

Under the Explanation to s 3(1)(a) AJPA, fair criticism of a court is not scandalising contempt. The Court held that fair criticism is not made out in respect of Wham’s or Tan’s post since “there is no objective or rational basis for both these posts” [para. 41].

Wham had claimed (in pleading fair criticism and/or mitigation of sentence) that his original post was based on knowledge of three specific instances where the Malaysian judiciary had adopted a less conservative approach (against the government) than their counterparts in Singapore, and he cited three pairs of Malaysian and Singaporean cases in support of it (“Case Pairs”).

The Court remarked that it was not evident that Wham had in fact written the post based on his knowledge of these Case Pairs, and that he might have “belatedly referred to those materials as an afterthought in an effort to bolster his case” [para. 44]. It also remarked that it was unclear whether Wham had actually read the cases or whether he had only read about them, and that Wham had equivocated even on which case(s) he was relying on.

Even if Wham had in fact based his original post on these cases, the post would not constitute fair criticism. It was incumbent on Wham to explain how exactly the post constituted fair criticism, and he had failed to do so since he had made only “bare and conclusory assertions” [para. 45], (emphasis in original) in his affidavit.

Conversely, the Court concurred with the High Court that there was no rational basis for comparing the three Malaysian cases with the three Singapore cases cited, and that evaluating the pairs could not reasonably produce the conclusion that Singapore judges, unlike Malaysian judges, are prone to deciding cases with political implication otherwise than according to their merits. Accordingly, Wham had not discharged his burden to prove that “there was at least an objective basis upon which [his comment] was reasonably put forward”.

On the basis of the above analysis, the Court affirmed the convictions of the appellants for scandalising contempt.

Sentencing of Wham

The Court first outlined that the maximum sentence for scandalising contempt is a fine of SGD 100,000 and three years’ imprisonment (s 12(1)(a) AJPA) and that it can consider common law factors in deciding on the sentence to be imposed.

The Court affirmed Wham’s sentence of a fine of SGD 5,000 with one week’s imprisonment in default.

The Court rejected the contention on behalf of Wham that he had not been cross-examined by the Attorney-General on his affidavit evidence that he had never intended to scandalise the court. It held that Wham’s assertion that he did not subjectively intend to scandalise the court was irrelevant because his post had objectively asserted that the Singapore judiciary was not independent and counsel for him had not denied as such. Furthermore, he had repeated the statement on several occasions and declined to retract or apologize for it and had even tried to defend it by citing cases in support of his statement.

The Court also rejected the contention that Wham’s subsequent post on Facebook on the day that leave was granted for an order of committal against him “expeditiously and publicly qualified or corrected” the original post and “achieve[d] the same effect as a retraction”. Instead, the Court held that the subsequent post had the effect not of withdrawing, retracting or even qualifying the original post but of attempting to justify it. The subsequent post had also unnecessarily repeated the content of the original post. His later posts on Facebook, particularly those published in January 2020, “were all of the same ilk” [para. 51].

Finally, the Court rejected as mitigation the contention that Wham was a “layperson with no legal education or background” and had accordingly misunderstood the complex points of administrative and constitutional law in the court judgments he had attempted to survey. If Wham had truly misunderstood the judgments owing to his lack of legal training, then his original post can only be regarded as “a bald and outrageous assertion without reference to any supporting facts” [para. 51], (emphasis in original). His refusal to apologize even after taking legal advice, however, makes even that view of his post implausible.

Sentencing of Tan

The Court affirmed Tan’s sentence of a SGD 5,000 fine with one week’s imprisonment in default.

The Court rejected the contention that Tan’s state of mind could not be properly assessed by the court since the Attorney-General had not applied to cross-examine Tan on his affidavit evidence. It was argued that anyone reading Tan’s post would be of the view that Tan had acted in anger at the Attorney-General, rather than with a primary intention to undermine the Judiciary. The Court held, however, that (similarly to Wham’s post) Tan’s post objectively asserted that the Singapore judiciary was not independent, and accordingly he could not claim he did not subjectively intend to undermine the judiciary, especially given that he maintained his position even after a long period with opportunity for reflection and legal advice.

The Court also held that Tan’s removal of the post from his Facebook profile after the sentencing and costs hearing was of no mitigating value because it did not demonstrate remorse, was only done after the sentencing hearing (more than five months after his conviction), and was only done to strengthen his counsel’s position in asking the Court for compassion. The Court remarked that Tan’s refusal to apologize for his post further demonstrated a lack of remorse.

In response to Tan’s pleading in mitigation that a fine of SGD 2,000 or more could potentially disqualify him from standing in the next General Election, the Court first remarked that there were no precedents where a sentence had been changed from a fine to imprisonment for this reason. Applying first principles, the Court held that Tan’s argument ran contrary to principle. Tan could not seek a harsher sentence than what would be regarded as appropriate, imprisonment being generally regarded as more severe than a fine. Precedents show that the court has only imposed imprisonment in lieu of a fine where it is unambiguously clear that the offender is unable to pay a fine and would end up facing a default term of imprisonment that would be even longer than a specific and intended sentence of imprisonment. In Tan’s case, there was simply no suggestion that Tan was unable to pay the fine, merely that he would prefer imprisonment. Furthermore, it has been established in past cases that a person who is convicted of an offence can expect to face the consequences that follow under the criminal law, and the professional or contractual consequences of sentences should not, therefore, be relevant.

Tan’s potential inability to run for electoral office cannot alternatively be regarded as an overriding public interest consideration affecting the type of sentence that should be imposed. Such an argument would suggest the democratic process would be hindered if fewer candidates could run for electoral office. However, this argument cannot succeed because Parliament has already separately legislated for the conditions that would disqualify a candidate from standing for election as a Member of Parliament, so the starting point for determining the public interest is to consider only candidates who are allowed to stand for election, not being disqualified under Article 45 of the Constitution. The Court further stated that it would be in the public interest to apply the law “fairly and equally without regard to whether or not an offender has political aspirations” [para. 63].

Costs

The Court affirmed the order that Wham and Tan pay costs of SGD 5,000 and disbursements to the Attorney-General.

The Court first rejected the Attorney-General’s argument that the general principle in civil proceedings that costs follow the event should stand. It held that committal proceedings such as the one at hand are very much criminal in nature, and that the modern law of contempt does not purport to attach such weight to the classification of civil and criminal contempt as would justify their different juridical treatment (Li Shengwu v The Attorney-General [2019] SGCA 20). The categories of civil and criminal contempt have become “virtually indistinguishable” in terms of the process by which committal proceedings for either is initiated, the applicable standard of proof in both, and the penal consequences that apply to both.

The Court stated that s 26(3) AJPA provides for its exercise of discretion in awarding costs as it thinks fit in contempt proceedings, and that in the past courts have consistently ordered costs in favor of the successful party in cases of scandalising contempt. Neither Wham nor Tan proposed a cause for deviating from this general rule.

Apology order

The Court outlined the four functions of apology orders, namely a “[s]ignalling, educative or corrective” function, a “[r]ehabilitative” function, a “[r]etributive” function, and a “[d]eterrence” function. It held that an apology order under AJPA may primarily serve the first of those functions, but may also serve the third and fourth functions, depending on the circumstances and point-of-view.

The Court rejected the “Presumptive Approach” proposed by the Attorney-General whereby the starting point is to order a contemnor to apologize if he refused to do so voluntarily. It remarked that it is not in every contempt case that signalling is required by means of an apology order. It would unnecessarily prevent the court from exercising a flexible discretion to choose from a range of available remedies. Furthermore, in some cases “an insincere apology made under compulsion can have the opposite effect of diminishing the standing of the Judiciary” [para. 75].

Instead, an apology order will only be considered in “exceptional circumstances”, i.e. “where the content of the contempt and the conduct of the contemnor are so egregious that the imposition of the ordinary punishments (… fine and/or imprisonment) does not suffice” [para. 76].

Applied to Wham and Tan, their sentences were held to be sufficient, and so no apology order was granted.

Cease-publication injunction

The Court noted that a cease-publication injunction may operate differently depending on whether or not the publication in question is a “continuing” one. Where the publication is not a continuing one, the contemnor would only be required to “desist from future publication” [para. 79]. Where the publication is a continuing or ongoing one, the contemnor may be directed to “take down the offending publication” as well.

The Court then held that a Facebook post, owing to its nature, is a continuing publication, as it “continues to be published for the entire time that it remains available on the Internet” [para. 80]. It can be “continually disseminated” when it is “liked”, “shared” or commented on, since they “actively resurfac[e] in the news feed of another individual”. The Court then cited evidence on how many people had reacted, shared, and commented on the relevant Facebook posts.

The Court stated that “there is generally no justification for permitting the continued existence or posting of a statement that has already been found to be contemptuous” [para. 81]; the issue, then, is “whether there are good reasons to favour the status quo and leave the contemptuous statement in existence”. The relevant factors are the technical feasibility of removal and whether the statement has already faded from the public consciousness (i.e. issuing the injunction would revive a falsehood “that has in truth died a natural death”).

Applied to Wham’s post, the Court concluded that there were no good reasons to leave it online, having regard to the relevant factors. Therefore, the appeal was allowed and a cease-publication injunction was granted requiring him to desist from future publication and to take down the original post.

Applied to Tan’s post, the Court concluded that an injunction was not necessary because it had already been removed, and it had not been sufficiently demonstrated that Tan may repeat his conduct.

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