Attorney-General v Hertzberg Daniel and Others

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 25 November 2008
• Neutral Citation: [2008] SGHC 218
• Date: 25 November 2008
• Subject Matter: Freedom of speech,Section 7(1) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed),Law of contempt as justifiable restriction on right to freedom of speech and expression,Contempt of Court,Defence of fair criticism,Scandalising the court,Advantages of inherent tendency test,Whether inherent tendency test or real risk test should apply for contempt of court by scandalising the court,Test for contempt of court by scandalising the court,Distinction between law of contempt and law of defamation,Constitutional Law,Acceptable limits dependent on local conditions and ideas held by courts about principles to be adhered to in administration of justice,Whether publications conveyed to reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning judge in exercise of his judicial function,Fundamental liberties,Publications in Wall Street Journal Asia which contained passages or words that scandalised Singapore judiciary by implication,Relevant factors for determining punishment,Rationale for law of contempt,Meaning of inherent tendency,Criminal contempt,Whether defence of fair criticism applied to publications,Freedom of expression,Whether inherent tendency test for contempt of court by scandalising the court inhibited right to freedom of speech and expression to an unjustifiable degree
• Docket Number: Originating Summons No 1131 of 2008
• Published date: 26 November 2008
• Defendant Counsel: Philip Jeyaretnam SC and Loh Kia Meng (Rodyk & Davidson LLP)
• Court: High Court (Singapore)
• Plaintiff Counsel: Attorney-General Walter Woon, Mavis Chionh, Hema Subramanian and Sabrina Choo (Attorney-General's Chambers)

25 November 2008

Tay Yong Kwang J:

Introduction

1 Words sometimes mean more than what they appear to say on the surface. This proposition is a recurring theme in the present proceedings before me, which concerns an application by the Attorney-General (“AG”) for orders of committal for contempt against three respondents (“the application”). The first respondent is Daniel Hertzberg, the editor of the Wall Street Journal Asia (“WSJA”); the second respondent is Christine Glancey, the managing editor of the WSJA; and the third respondent is Dow Jones Publishing Company (Asia) Inc, the proprietor and the publisher of the WSJA.

2 The grounds for the application are set out in the Statement dated 27 August 2008 filed pursuant to O 52 r 2(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). It is the AG’s complaint that the respondents have jointly and/or severally participated in acts which resulted in the publication and distribution of the following articles and letter in the WSJA (“the publications”), each of which contained passages that scandalise the Singapore judiciary:

(a) An article titled “Democracy in Singapore”, published on 26 June 2008 in the WSJA (“the First Article”);

(b) A letter by Dr Chee Soon Juan (“Dr Chee”) titled “Produce the Transcript, Show the Truth”, published on 9 July 2008 in the WSJA (“the Letter”); and

(c) An article titled “Judging Singapore’s Judiciary”, published on 15 July 2008 in the WSJA (“the Second Article”).

The publications were all featured in the WSJA’s Editorials and Opinion page, but under different sections - the two articles were published under “Review and Outlook”, while the letter was published under “Letters to the Editor”.

3 Besides the application, the first and second respondents took out Summons No 4563 of 2008 (“SUM 4563”) to set aside the service of the amended Originating Summons of the application. On 28 October 2008, the parties appeared before me for directions at a pre-trial conference and informed me that they have agreed to proceed with the application against the third respondent only and to hold the matters in respect of the first and second respondents (including SUM 4563) in abeyance, pending the outcome of the application against the third respondent (as well as the outcome of any appeal therefrom by the AG and/or the third respondent to the Court of Appeal). I agreed with the parties on their proposed course of action. As such, the application in the instant case is only against the third respondent.

Background

The publications

4 As will be demonstrated shortly, it is not the AG’s case that the publications contained passages or words that expressly scandalise the Singapore judiciary but that they do so by implication, especially when the allegedly offending passages or words of each publication are read in the context of that individual publication. It would therefore be necessary to set out in full the contents of each publication. The portions of the individual publication that are relied upon by the AG for the purposes of the present contempt proceedings are emphasised in italics below.

5 The First Article, titled “Democracy in Singapore”, has the bye-line “Two court cases reveal much about the city-state’s lack of freedoms”, and it reads as follows:

Lee Kuan Yew's Singapore can rightly be proud of many achievements, but full democracy is not one of them. The city-state he founded in 1965 and led as Prime Minister until 1990 is economically prosperous and its citizens enjoy a range of freedoms. Political dissent is not among them.

Which makes a recent David vs. Goliath exchange between one of the country's few opposition politicians and Mr. Lee worth noting. The dialogue took place in a courtroom and is therefore privileged – which means we can report on it without risking a lawsuit, which Mr. Lee often files against critics.

Audio files are available on the Singapore Democratic Party's Web site, www.yoursdp.org, and a partial transcript is available at www.singaporerebel.blogspot.com, an independent blog. The Straits Times reported last Thursday that the Supreme Court is “investigating the facts” of how the transcripts and audio recordings were released. A Court spokeswoman, in an emailed statement, said “in general, transcripts are provided only to parties of the case.”

The setting was a hearing to assess damages against Chee Soon Juan, head of the Singapore Democratic Party, and his sister and colleague, Chee Siok Chin. In 2006, the Chees lost a defamation suit brought by Mr. Lee and his son, Prime Minister Lee Hsien Loong, over an article they published in their party newsletter that was interpreted by the court to imply corruption on the part of the government. In last month's hearing, the elder Mr. Lee, who holds the title of Minister Mentor, was cross-examined by Mr. Chee, who was representing himself.

Mr. Chee is no orator, and on one level the dissident was no match for the eloquent Mr. Lee. But when the subject turned to the moral underpinnings of democracy – freedoms of speech, assembly and association – the debate went game, set and match to Mr. Chee.

Mr. Chee set out his philosophy while questioning Mr. Lee: "What I'm interested in is justice, the rule of law, because ultimately it is not about you, Mr. Lee. It is not about me. It's about the people of Singapore, it is about this country and everything we stand for. You and I will pass on, but I can tell you, the practice of the rule of law, the entire concept of justice, democracy – that is going to last for all eternity."

Mr. Lee didn't respond directly to those assertions, choosing instead to cite the International Bar Association's decision to "honor" Singapore by holding its annual conference there last year and noted a letter from the association's president saying "how impressed they were by the standards they found to obtain in the judiciary."

Elsewhere in the hearing, Mr. Lee defended his string of defamation suits against opposition politicians and the press: "They know me by now," Mr. Lee said, referring to the people of Singapore, "that if anybody impugns the integrity of the government, of which I was the prime minister, I must sue."

He went on: "There are various parts of this government which do not comply with Western practices, including the law of libel. But it is a system that has worked." Mr. Lee has never lost a libel suit. He and his son are currently suing the Far Eastern Economic Review, a sister publication of this newspaper, and its editor, Hugo Restall.

Our reading of the Chee-Lee transcript is that the Minister Mentor sounded more than a tad defensive – no less so than in his characterization of Mr. Chee, who has been bankrupted as a result of lawsuits by Mr. Lee and other politicians. He called Mr. Chee, a "liar, a cheat and altogether an unscrupulous man." Not to mention "a near-psychopath." Mr. Chee, for his part, referred to Mr. Lee as a "pitiable figure."

It's hard to know what Singaporeans make of all this. Mr. Lee is widely revered as the father of their country, and Mr. Chee is often scorned for his aggressive tactics. But at least, thanks to the Internet, they are able to read the exchange and make up their own minds.

So, too, in the case of Gopalan Nair, which is making its way through the courts now. Mr. Nair is a former Workers' Party candidate. He is now a U.S. citizen and online advocate for media freedom in Singapore. He traveled to the city-state to attend Mr. Chee's hearing last month and recorded his thoughts on his blog, where he expressed his contempt for the court proceedings and challenged Mr. Lee to sue him.

On May 31, he was arrested and interrogated. On June 2, he was charged with insulting Judge Belinda Ang, who presided over the Chee hearing, by email. He was released on June 5, six days after his initial arrest, and charged on June 12 with insulting another judge in a separate, 2006 email. Last week, the court changed the first charge and specified that the offending remarks about Judge Ang were made on a blog, not by email. Mr. Nair says the police have also threatened him with charges under the Sedition Act.

Mr. Nair's case is scheduled to go to court in mid-July. Meanwhile, Mr. Chee was just released from jail, where he served 11 days for "scandalizing" the court during his questioning of the Minister Mentor. His sister served 10 days. The court has yet to set the amount of monetary damages in the defamation case. When it does, we'll know the going price of political dissent these days in Lee Kuan Yew's Singapore.

[emphasis added]

6 The Letter, which was published on 9 July 2008, was titled “Produce the Transcript, Show the Truth”. It was a reply to an earlier letter (published on 2 July 2008 in the WSJA) by Minister Mentor Lee Kuan Yew’s (“Mr Lee”) press secretary, Ms Yeong Yoon Ying (“Ms Yeong”), who had written to respond to some of the allegations made in the First Article. Dr Chee, as Secretary-General of the Singapore Democratic Party, wrote the following in the Letter:

I refer to the letter by Lee Kuan Yew's press secretary, Yeong Yoon Ying, "Freedom of Speech and Law in Singapore" (July 2), in which she quoted me as calling, in open court, Singapore leaders "'murderers, robbers, child molesters' and 'rapists'."

Mr. Lee, or his counsel, is in possession of court transcripts and audio recordings that would show whether I had uttered those words. He must now produce the part of the transcript that quotes me saying those words or he risks destroying his own credibility.

Mr. Lee and his prime minister son, Lee Hsien Loong, sued the Singapore Democratic Party and its executive members for defamation over an article we published in our party newsletter criticizing the nontransparent and nonaccountable manner in which Singapore was run.

The Lees obtained summary judgment from the courts despite our defense, in which we cited disputes of fact and law. In other words, there were triable issues. The...