AG v Wham Kwok Han Jolovan

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 09 October 2018
• Neutral Citation: [2018] SGHC 222
• Published date: 28 March 2020
• Date: 09 October 2018
• Year: 2018
• Hearing Date: 17 July 2018
• Plaintiff Counsel: Ng Yong Kiat, Francis SC, Sheryl Janet George and Senthilkumaran Sabapathy (Attorney-General's Chambers (Criminal Justice Division))
• Citation: [2018] SGHC 222
• Defendant Counsel: Eugene Singarajah Thuraisingam, Suang Wijaya and Chooi Jing Yen (Eugene Thuraisingam LLP) and Choo Zheng Xi and Priscilla Chia Wen Qi (Peter Low & Choo LLC),Eugene Singarajah Thuraisingam, Suang Wijaya and Chooi Jing Yen (Eugene Thuraisingam LLP)
• Court: High Court (Singapore)
• Docket Number: Originating Summonses Nos 510 and 537 of 2018 (Summonses Nos 2196 and 2192 of 2018)

Woo Bih Li J: Introduction

The Attorney-General (“the AG”) commenced two actions, Originating Summonses Nos 510 and 537 of 2018 (“OS 510/2018” and “OS 537/2018” respectively). In OS 510/2018, the AG filed Summons No 2196 of 2018 (“SUM 2196/2018”) for Wham Kwok Han Jolovan (“Wham”) to be punished for contempt of court under s 3(1)(a) of the Administration of Justice (Protection) Act 2016 (No 19 of 2016) (“the Act”). Section 3(1)(a) provides for the offence of contempt by scandalising the court (“scandalising contempt”). In OS 537/2018, the AG filed Summons No 2192 of 2018 (“SUM 2192/2018”) for Tan Liang Joo John (“Tan”) to be punished for scandalising contempt under the same provision. Wham and Tan are collectively referred to as “the Respondents”.

The Act came into operation on 1 October 2017. The Respondents are the first individuals against whom proceedings were commenced for scandalising contempt under s 3(1)(a) of the Act. The conduct alleged to be scandalising contempt pertain to the Respondents’ respective posts on their Facebook profiles. The Respondents first raised a constitutional challenge to the validity of s 3(1)(a), in view of their rights to freedom of speech and expression under Art 14(1)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). The Respondents also denied that they committed scandalising contempt. In the case of Wham, he also alleged that his post constitutes fair criticism.

Background

On 27 April 2018 at or about 6.30pm, Wham published a post on his Facebook profile (“Wham’s post”) containing the following statement:¹

Malaysia’s judges are more independent than Singapore’s for cases with political implications. Will be interesting to see what happens to this challenge.

Wham’s post also consisted of a link to an online article titled “Malaysiakini mounts constitutional challenge against Anti-Fake News Act”. Wham published his post under the “Public” setting of Facebook’s audience selector. According to information on Facebook’s online Help Centre, sharing a post under the “Public” setting means that “anyone including people off of Facebook can see it”.²

On 30 April 2018, the AG filed an application by ex parte OS 510/2018 for leave to apply for an order of committal against Wham for scandalising contempt under s 3(1)(a) of the Act in connection with his post. Pursuant to O 52 r 2(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), the application was supported by a statement (“the O 52 statement”) which, inter alia, set out the grounds on which Wham’s committal was sought, and by an affidavit verifying the facts relied on.

On 6 May 2018 at or about 11.05am, Tan published a post on his Facebook profile (“Tan’s post”) containing the following statement:³

By charging Jolovan for scandalising the judiciary, the AGC only confirms what he said was true.

Tan’s reference to “AGC” was to the Attorney-General’s Chambers (“AGC”).⁴ Tan’s reference to “what [Wham] said was true” was to what Wham said in Wham’s post.⁵ Tan’s post also consisted of a link to Wham’s Facebook profile.⁶ Like Wham, Tan published his post under the “Public” setting of Facebook’s audience selector.

On 7 May 2018, the AG filed an application by ex parte OS 537/2018 for leave to apply for an order of committal against Tan for scandalising contempt under s 3(1)(a) of the Act in connection with his post. Pursuant to O 52 r 2(2) of the Rules of Court, the application was supported by a statement which, inter alia, set out the grounds on which Tan’s committal was sought, and by an affidavit verifying the facts relied on.

On 9 May 2018, I heard both OS 510/2018 and OS 537/2018 and granted both applications for leave. Thereafter, on 11 May 2018, the AG filed SUM 2196/2018 and SUM 2192/2018 for the Respondents to be punished for scandalising contempt under s 3(1)(a) of the Act.

On 17 July 2018, I heard the parties on both summonses and reserved judgment.

Issues

Based on the parties’ submissions, the following issues arise for determination: Is s 3(1)(a) of the Act consistent with Art 14(1)(a) of the Constitution and consequently valid? Art 14(1)(a) refers to a Singapore citizen’s right to freedom of speech and expression. If s 3(1)(a) of the Act is consistent with Art 14(1)(a) of the Constitution: What are the applicable principles in relation to the offence of scandalising contempt under s 3(1)(a)? Did Wham commit scandalising contempt under s 3(1)(a) by intentionally publishing his post? Did Tan commit scandalising contempt under s 3(1)(a) by intentionally publishing his post?

I will address the issues seriatim.

Constitutional issue

The preliminary issue that arises for determination is the constitutional issue: whether s 3(1)(a) of the Act is consistent with Art 14(1)(a) of the Constitution and is consequently valid.

Parties’ arguments

Section 3(1)(a) of the Act and its accompanying explanation, Explanation 1 to s 3(1), state as follows:

Contempt by scandalising court, interfering with administration of justice, etc.

3.—(1) Any person who — (a) scandalises 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;

…

commits a contempt of court.

Explanation 1.—Fair criticism of a court is not contempt by scandalising the court within the meaning of subsection (1)(a).

…

[emphasis added in bold]

I will call the test in s 3(1)(a)(ii) of the Act, that the contemptuous conduct poses a risk that public confidence in the administration of justice would be undermined, the “risk” test.

For the “risk” test, the Respondents argued that if such “risk” includes “a remote or fanciful possibility” that public confidence in the administration of justice would be undermined, then this provision would violate a Singapore citizen’s right to freedom of speech and expression under Art 14 of the Constitution and is therefore void.⁷ Article 4 of the Constitution provides that the Constitution is the supreme law of Singapore.

Prior to this statutory “risk” test in s 3(1)(a)(ii) of the Act, the common law on scandalising contempt was that the contemptuous conduct must pose a “real risk” that public confidence in the administration of justice would be undermined (see Shadrake Alan v Attorney-General [2011] 3 SLR 778 (“Shadrake Alan (CA)”) at [57]; Au Wai Pang v Attorney-General [2016] 1 SLR 992 (“Au Wai Pang”) at [18]). I will call this common law test the “real risk” test. The Respondents argued that the “risk” test in s 3(1)(a)(ii) has no nexus with maintaining public confidence in the administration of justice.⁸ They also submitted that the “real risk” test is “necessary for the offence [of scandalising contempt] to survive a constitutional right to freedom of speech”.⁹

On the other hand, the AG submitted that the Respondents’ constitutional challenge to the validity of s 3(1)(a)(ii) of the Act should be dismissed. The AG submitted that this provision is a legislative overruling of the “real risk” test at common law for scandalising contempt and its enactment was a valid exercise of legislative power.¹⁰ The AG submitted that the provision is a permissible restriction under Art 14(2)(a) of the Constitution.¹¹

Analysis

The relevant constitutional provisions that pertain to a Singapore citizen’s right to freedom of speech and expression are found in Arts 14(1)(a) and 14(2)(a) of the Constitution. These provisions state as follows:

Freedom of speech, assembly and association

14.—(1) Subject to clauses (2) and (3) — (a) every citizen of Singapore has the right to freedom of speech and expression;

…

(2) Parliament may by law impose — (a) on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;

…

[emphasis added]

In the preceding paragraph, I italicised the applicable clause for Parliament to impose restrictions on a Singapore citizen’s right to freedom of speech and expression in the context of providing against contempt of court. Under Art 14(2)(a), “Parliament may by law impose on the rights conferred by clause (1)(a) … restrictions designed … to provide against contempt of court”. Since s 3(1)(a) of the Act which provides for the offence of scandalising contempt is such a restriction designed to provide against contempt of court, I find that s 3(1)(a) is consistent with Art 14(1)(a) of the Constitution and is consequently valid.

This finding is supported by V K Rajah J’s interpretation of Art 14(2) of the Constitution in Chee Siok Chin and others v Minister for Home Affairs and another [2006] 1 SLR(R) 582 (“Chee Siok Chin”), which the AG and the Respondents submitted as relevant in determining the constitutional issue. In Chee Siok Chin at [49], Rajah J said:

… The court’s sole task, when a constitutional challenge is advanced, is to ascertain whether an impugned law is within the purview of any of the permissible restrictions. … All that needs to be established is a nexus between the object of the impugned law and one of the permissible subjects stipulated in Art 14(2) of the Constitution. … A generous and not a pedantic interpretation should be adopted; see also s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) … and Constitutional Reference No 1 of 1995 [1995] 1 SLR(R) 803. The presumption of legislative constitutionality will not be lightly displaced.

The...