Attorney-General v Wham Kwok Han Jolovan and another matter

• Judge: Woo Bih Li J
• Judgment Date: 29 April 2019
• Neutral Citation: [2019] SGHC 111
• Citation: [2019] SGHC 111
• Docket Number: Originating Summonses Nos 510 and 537 of 2018 (Summonses Nos 2196 and 2192 of 2018)
• Published date: 28 March 2020
• Hearing Date: 20 March 2019
• Plaintiff Counsel: Francis Ng, SC, Senthilkumaran Sabapathy and Sheryl Janet George (Attorney-General's Chambers)
• Date: 29 April 2019
• Defendant Counsel: Eugene Singarajah Thuraisingam (Eugene Thuraisingam LLP),Eugene Singarajah Thuraisingam (Eugene Thuraisingam LLP) and Choo Zheng Xi and Priscilla Chia Wen Qi (Peter Low & Choo LLC)
• Court: High Court (Singapore)
• Subject Matter: Sentencing,Contempt of Court

Woo Bih Li J:

In Originating Summons No 510 of 2018, Summons No 2196 of 2018, Wham Kwok Han Jolovan (“Wham”) was convicted on 9 October 2018 for the offence of contempt by scandalising the court (“scandalising contempt”) under s 3(1)(a) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“the Act”). In Originating Summons No 537 of 2018, Summons No 2192 of 2018, Tan Liang Joo John (“Tan”) was also convicted on 9 October 2018 for scandalising contempt under the same provision. Wham and Tan are collectively referred to as “the Respondents”.

The circumstances as to how the Respondents respectively committed scandalising contempt are set out in my judgment dated 9 October 2018 (Attorney-General v Wham Kwok Han Jolovan and another matter [2018] SGHC 222 (“Wham Kwok Han Jolovan”)). The conduct that was scandalising contempt pertained to the Respondents’ respective posts on their Facebook profiles (referred to as “Wham’s post” and “Tan’s post” respectively).

On 20 March 2019, I heard the parties on the appropriate sentences for Wham and Tan respectively, and reserved judgment.

Appropriate sentence for Wham

I address first the issue of the appropriate sentence for Wham.

Parties’ arguments

In summary, the Attorney-General (“the AG”) submitted that the appropriate sentence for Wham is a fine in the range of $10,000 to $15,000, with two to three weeks’ imprisonment in default. The AG also submitted that the court should order Wham to publish a notice to apologise for his post, and this order should be made subject to conditions including one that Wham’s post be removed forthwith. Should the court decline to order Wham to publish a notice to apologise, the AG was still seeking a separate order for Wham to remove his post forthwith.

On the other hand, Wham submitted that the appropriate sentence is a fine in the range of $4,000 to $6,000, with one week’s imprisonment in default. Wham also submitted that the court should neither order him to publish a notice to apologise for his post nor order him to remove his post forthwith.

The AG’s arguments

Sentence

The AG contended that cases on scandalising contempt at common law remain relevant as sentencing precedents for the offence of scandalising contempt under s 3(1)(a) of the Act. In particular, the AG argued that the case of Au Wai Pang v Attorney-General [2016] 1 SLR 992 (“Au Wai Pang”) provides the most useful reference point for determining the appropriate sentence for Wham.¹ Like the contemnor in Au Wai Pang who had created and published his contemptuous article on the Internet, ie, his blog, Wham had published his post on the Internet (on his Facebook profile), a medium through which such material can be spread quickly and widely.

The AG, however, argued that Wham’s culpability was higher and his conduct was more egregious than the culpability and conduct of the contemnor in Au Wai Pang, upon whom a fine of $8,000 had been imposed.² The AG argued that Wham’s post was an indiscriminate attack on the entire Singapore judiciary, while the contemptuous article in Au Wai Pang had only been directed at specific members of the Singapore judiciary.³ The AG also contended that Wham’s post, while ostensibly about proceedings in Malaysia, “was really a sly dig at the Singapore courts”.⁴

The AG also submitted that Wham showed an utter lack of remorse, in that as at the hearing on the appropriate sentence for Wham, he had neither removed his post from his Facebook profile nor apologised.⁵ The AG further argued that in so doing, Wham showed a blatant disregard for the finding of this court that he committed scandalising contempt.⁶ The AG submitted Wham’s lack of contrition as a substantial aggravating factor in this case.⁷ In contrast, the AG argued that the contemnor in Au Wai Pang had demonstrated remorse in removing his contemptuous article from his blog after the court granted leave to the AG to apply for an order of committal against him, and in apologising.⁸

The AG also argued that the potential extent of dissemination of Wham’s post was greater than that of the contemptuous article in Au Wai Pang due to the extended period of time for which Wham’s post remained online.⁹ The AG further contended that the extent of dissemination of Wham’s post was further amplified by two further posts that Wham published on his Facebook profile on 8 October 2018 and 9 October 2018 respectively.¹⁰ The AG submitted that each of these further posts appeared on its face to be for the purposes of informing the public of the status/outcome of the proceedings against Wham for scandalising contempt, but each also included a republication of the contemptuous content of Wham’s post.

Notice to apologise

Next, the AG submitted that the court should also order Wham to publish a notice to apologise for his post, pursuant to s 12(3) of the Act.¹¹ In the written submissions to the court, the AG annexed a draft notice for the apology. The AG argued that this order should be made subject to certain conditions, including that:¹² Wham’s post be removed forthwith; any and all republication of Wham’s post in whole or in part be removed; the notice to apologise remain published for as long as Wham’s post was online; Wham accepted that his post wrongfully alleged that the Singapore courts lacked integrity and were not impartial; Wham undertook not to republish his post or any part of it in any form or medium; and Wham undertook not to put up any posts, or do any other act, that amounted to contempt of court in future. The AG submitted that these conditions included the usual and natural expressions of an apology.¹³

The AG submitted that ordering Wham to publish a notice to apologise is necessary because he has failed to remove his post or apologise for it.¹⁴ The AG argued that in so far as it is necessary to purge scandalising contempt, such an order would be appropriate.¹⁵

In this regard, the AG was essentially contending that in general, the court should order a contemnor to publish a notice to apologise under s 12(3) as long as he refused to apologise/remove his contemptuous publication. The AG argued that there was no indication that the court is only to make such an order in exceptional cases.¹⁶ Instead, the AG argued that the relevant provisions, ss 12(2) to 12(5) of the Act (set out at [40] below), have a common thread showing that the purpose of making such an order is to purge the contempt of the contemnor.¹⁷ The AG submitted that there is a public interest in purging such contempt of court, which is unlike the private right of an individual not to be defamed where the remedy could be to increase the damages and penalties.¹⁸ The AG also argued that there was no reason why the court should tolerate the contempt of court being left unpurged, like in this case, with Wham’s post remaining on his Facebook profile, and that the natural consequence of a finding of scandalising contempt should be that Wham be ordered to remove his post forthwith.¹⁹

In line with the purpose of purging contempt, the AG further contended that the focus of s 12(3) is the efficacy of the notice to apologise in purging the said contempt.²⁰ The AG thus argued that the court should order Wham to publish the notice to apologise in the same manner as that in which he had published the contemptuous publication, so as to inform the same target audience that the contempt has been purged.²¹

However, the AG did not refer to any parliamentary debates or case authority, including from foreign jurisdictions, to assist the court in determining when it should order a contemnor to apologise.²²

The AG also submitted that the purpose of ordering a contemnor to publish a notice to apologise is not to extract a genuine apology from him.²³ The AG submitted that s 12(3) would be rendered otiose if the court took a view that an apology must be genuine.²⁴

The AG also stated that should the court order Wham to publish a notice to apologise for his post and he thereafter refused to do so, this would be considered an act of contempt of court.²⁵

Removal of Wham’s post

It was during the hearing on sentence that the AG submitted that should the court decline to order Wham to publish a notice to apologise for his post, the AG was still seeking a separate order for Wham to remove his post forthwith. The AG relied on s 9(d) of the Act to argue that the court had the inherent power to issue an injunction to restrain what the AG seemed to refer to interchangeably as: (i) Wham’s “continuing contempt” in “publishing” his post, (ii) Wham’s continuing contempt in not removing his post, or (iii) the “continuing publication” of the post.²⁶ The AG contended that such an injunction would be a prohibitory injunction and not a mandatory injunction.²⁷

As with the notice to apologise, the AG submitted that such an injunction is necessary to purge Wham’s scandalising contempt.²⁸

However, the AG did not refer to any parliamentary debates or case authority, including from foreign jurisdictions, to assist the court in determining when it should order a contemnor to remove his contemptuous publication.²⁹ Instead, the AG drew an analogy to defamation cases. Referring the court to Chin Bay Ching v Merchant Ventures Pte Ltd [2005] 3 SLR(R) 142 (“Chin Bay Ching”) at [23], the AG argued that a court would issue a prohibitory injunction as a matter of course.

Wham’s arguments

Sentence

With regard to the appropriate sentence, Wham did not dispute that Au Wai Pang is an appropriate reference point for sentencing.³⁰ However, he contended that his conduct was less egregious than the contemnor’s in Au Wai Pang and argued that his sentence should be much lower than the latter’s.

First, Wham argued that his post was more general and superficial than the contemptuous article in Au Wai Pang, which had been far more detailed, acerbic, calculated and insidious, and had alleged...