Attorney-General v Au Wai Pang

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 21 January 2015
• Neutral Citation: [2015] SGHC 16
• Plaintiff Counsel: Tai Wei Shyong and Elaine Liew (Attorney-General's Chambers)
• Docket Number: Originating Summons No 1098 of 2013 (Summons No 6209 of 2013)
• Date: 21 January 2015
• Hearing Date: 21 October 2014
• Subject Matter: Contempt of Court
• Year: 2015
• Citation: [2015] SGHC 16
• Defendant Counsel: Peter Low, Choo Zheng Xi, Christine Low and Raj Mannar (Peter Low LLC)
• Court: High Court (Singapore)
• Published date: 04 December 2015

Belinda Ang Saw Ean J: Introduction

The Attorney-General (“the AG”) brought these committal proceedings against the respondent, Au Wai Pang (“the Respondent”), in connection with the publication of two articles on his blog which the AG said amounted to contempt of court in the form of scandalising the Supreme Court of Singapore (“the Supreme Court”). The alleged contempt imputed bias on the part of the Supreme Court against homosexuals.

The first article, titled “377 [sic] wheels come off Supreme Court’s best-laid plans” (“the First Article”), was posted on the Internet at the Respondent’s blog address http://yawningbread.wordpress.com/ (“the Yawning Bread blog”) on 5 October 2013. It concerned two parallel High Court cases on the constitutionality of s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“s 377A”), which criminalises sex between males. The issue for decision by the High Court in these two cases (hereafter referred to as “the Tan Eng Hong case” and “the Lim Meng Suang case”) was whether s 377A was unconstitutional as being inconsistent with Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”).

The second article, titled “Church sacks employee and sues government – on one ground right, on another ground wrong” (“the Second Article”), was posted on the same blog (ie, the Yawning Bread blog) on 12 October 2013. It concerned two separate civil cases in the High Court brought by Lawrence Bernard Wee Kim San (“Wee”), a former employee of Robinson & Company (Singapore) Pte Ltd (“Robinson”). In the first civil case (“the Robinson Suit”), Wee claimed that he had been constructively dismissed by Robinson on the grounds of his sexual orientation or in breach of an implied term of mutual trust and confidence in his employment contract with the company. On 23 August 2013, after the Robinson Suit was struck out by the High Court and pending Wee’s appeal against that decision to the Court of Appeal, Wee filed a separate set of proceedings in Originating Summons No 763 of 2013 (“Wee’s Constitutional Claim”) seeking a declaration that Art 12 of the Singapore Constitution prohibited discrimination against gay men in the workplace. The AG was named as the defendant in Wee’s Constitutional Claim.

The debate in the present committal proceedings is whether the First Article and the Second Article (collectively, “the Impugned Articles”) fall within the legal limits that permit the Respondent to exercise a genuine right of fair criticism, or whether they lend themselves to imputations of bias and impropriety on the part of the Supreme Court and thereby carry a real risk of undermining public confidence in the Singapore judiciary. This judgment will discuss what amounts to contempt of court in the form of scandalising the court, and what must be proved to establish this offence. One important inquiry in the present case is whether the AG has satisfied the “real risk” test for determining liability for this offence. In order to satisfy this test, the AG must prove that the facts of this case establish beyond reasonable doubt that the Impugned Articles carry a real risk of undermining public confidence in the administration of justice in Singapore. In this regard, this judgment will undertake an analysis of the Impugned Articles with the relevant legal principles in mind.

The law on contempt in the form of scandalising the court The nature of the contempt

The form of contempt of court known as “scandalising the court” (also referred to hereafter as “scandalising contempt”) is part of the law of Singapore. Under s 7(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), both the High Court and the Court of Appeal have the power to punish for such contempt. (The State Courts have a similar power under s 8(1) of the State Courts Act (Cap 321, 2007 Rev Ed).)

Shadrake Alan v Attorney-General [2011] 3 SLR 778 (“Shadrake CA”) is the leading local authority on the law of scandalising contempt. This offence is not intended to shield judges from the publication of fair criticism of their decisions. It exists not to protect the dignity of judges, but to protect the integrity of the administration of justice by the court, whose central role in upholding the rule of law requires it to enjoy public confidence. The upholding of the rule of law is the function of the court, and the court can only effectively discharge that function if it commands the authority and respect of the public. Scandalising contempt may, depending on the facts and surrounding context, embrace conduct and/or words that undermine public confidence in the integrity, propriety and impartiality of the court, and thus, the authority of the court as a whole.

The fundamental purpose underlying the law of contempt of court generally, and the law of scandalising contempt in particular, can be seen from (among other cases) the Court of Appeal’s judgment in Shadrake CA, which was delivered by Andrew Phang Boon Leong JA. At [21] of Shadrake CA, Phang JA cited the following passage from Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] 2 SLR(R) 518 (“Pertamina Energy”) at [22]:

… [T]he doctrine of contempt of court is not intended, in any manner or fashion whatsoever, to protect the dignity of the judges as such; its purpose is more objective and is (more importantly) rooted in the public interest. As Lord Morris of Borth-y-Gest put it in the House of Lords decision of Attorney-General v Times Newspapers Ltd [1974] AC 273 (at 302) …: In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustified interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted and their authority wanes and is supplanted. …

…

[emphasis added by the Court of Appeal in Pertamina Energy]

In Gallagher v Durack (1983) 152 CLR 238, the High Court of Australia justified the continued existence of the offence of scandalising contempt as follows (at 243):

The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of the court or judges.

There is significant tension between freedom of speech and the administration of justice because of the public interest in protecting both principles. The offence of scandalising contempt is viewed by Singapore law as a reasonable limit upon freedom of speech, and recognises that limitations upon freedom of speech are necessary in the public interest so as to take into account the rights of others and the interests of the whole community. As Phang JA put it in Shadrake CA at [17]:

At the most general level, it should be noted that the law relating to contempt of court operates against the broader legal canvass of the right to freedom of speech that is embodied both within Art 14 of the [Singapore] Constitution … as well as the common law. The issue, in the final analysis is one of balance: just as the law relating to contempt of court ought not to unduly infringe the right to freedom of speech, by the same token, that right is not an absolute right, for its untrammelled abuse would be a negation of the right itself. Indeed, this last mentioned point is embodied in Art 14(2) of the [Singapore] Constitution which provides that “Parliament may by law impose … restrictions designed to … provide against contempt of court”. In this regard, the Singapore parliament has in fact provided the courts with the jurisdiction to punish for contempt in s 7(1) of the Supreme Court of Judicature Act … [emphasis in original]

David Tan (“Mr Tan”), in his article “A ‘real risk’ of undermining public confidence in the administration of justice” (2011) 16 Media & Arts Law Review 191, argues (at 202) that the decision in Shadrake CA strikes an appropriate balance between safeguarding, on the one hand, freedom of speech and, on the other hand, the public interest in protecting public confidence in the administration of justice in Singapore. He suggests that this balance is achieved by the application of the “real risk” test for liability, coupled with the placing of the onus on the party bringing the committal proceedings (typically, the prosecuting authorities of the jurisdiction concerned (“the Prosecution”)) to prove the elements of the offence based on the criminal standard of beyond reasonable doubt.

I agree with Mr Tan that the combination of the “real risk” test and the placing of the legal burden on the Prosecution “calibrates” appropriately the tension between freedom of speech and the public interest in protecting public confidence in the administration of justice. Notably, the “real risk” test for liability sets a higher threshold for establishing liability than the “inherent tendency” test that was previously applied in Singapore. The “real risk” test is also in line with the test applied in other common law jurisdictions such as Australia, New Zealand and Hong Kong. In addition, as just mentioned, the legal burden is on the Prosecution (in the Singapore context, the AG) to prove the elements of the offence beyond reasonable doubt. In this regard, the Court of Appeal in Shadrake CA (at [80]) chose to treat fair criticism as an element to be evaluated within the ambit of liability for scandalising contempt. This is different from the law of defamation (where fair criticism is a defence), and has the effect of firmly retaining...