Attorney General v Lingle and Others

CourtHigh Court (Singapore)
JudgeGoh Joon Seng J
Judgment Date06 February 1995
Neutral Citation[1995] SGHC 31
Citation[1995] SGHC 31
Defendant CounselFirst respondent absent,K Shanmugam and Foo Maw Shen (Allen & Gledhill),Michael Hwang (Allen & Gledhill)
Plaintiff CounselChan Sek Keong (Attorney General) and Quek Mong Hua (Attorney General's Chambers)
Published date19 September 2003
Docket NumberOriginating Summons No 1109 of 1994
Date06 February 1995
Subject MatterContempt of Court,Whether public confidence in the administration of justice undermined,Right not absolute,Freedom of speech and expression,Freedom of speech,Contempt of court,Elements of offence,Test of ordinary reasonable reader,Scandalizing the court,Allegation of impartiality of unnamed judiciary in newspaper article,Penalty,Identification,Relevant factors to be considered,Duty of responsibility,Whether publication undermined public confidence in administration of justice,Intention only relevant to sentence,Constitutional Law,Criminal contempt,Whether offending passage referred to judiciary of Singapore,No intention necessary,Fundamental liberties,Right to fair criticism of judges and courts

On 11 November 1994, the Attorney General was granted leave to apply for orders of committal against the following:

(1) Christopher Lingle;

(2) P Michael Richardson;

(3) Richard A McClean;

(4) International Herald Tribune (Singapore) Pte Ltd; and

(5) Singapore Press Holdings Ltd.

The grounds of the application were that the five respondents had committed a contempt of court by their joint and several acts in connection with, the bringing into existence, the publishing, printing and distribution of an article published in the `Opinion` page of the 7 October 1994 issue of the International Herald Tribune (IHT) entitled `The Smoke Over Parts of Asia Obscures Some Profound Concerns` (the article).
The article was written by the first respondent, who was at that time, a Senior Fellow in European Studies at the National University of Singapore. It was written as a response to an article by Mr Kishore Mahbubani entitled `You May Not Like It, Europe, But This Asian Medicine Could Help` which appeared in the `Opinion` page of the 1 October 1994 issue of the IHT. Mr Kishore Mahbubani is the Permanent Secretary, Ministry of Foreign Affairs, Singapore.

The article contained the following passage (the offending passage) which was complained of as having scandalized the Singapore judiciary by its imputation that it is subservient to the government and or government politicians or lacks integrity, independence, objectivity or impartiality in the adjudication of court actions by government or government politicians against opposition politicians:

Intolerant regimes in the region reveal considerable ingenuity in their methods of suppressing dissent. Some techniques lack finesse; crushing unarmed students with tanks or imprisoning dissidents. Others are more subtle; relying upon a compliant judiciary to bankrupt opposition politicians, or buying out enough of the opposition to take control `democratically`. Trade unionists in Europe seldom face such pressures.

The second respondent is IHT`s editor for Asia and is based in Singapore.
The third respondent is IHT`s publisher and chief executive. He is based in Paris. The fourth respondent is the distributor of IHT in South East Asia. The fifth respondent is the printer of IHT in Singapore. It is a local press company whose printing arm prints several other international newspapers in Singapore.

Pursuant to leave obtained on 11 November 1994, the Attorney General moved this court for orders of committal against the respondents.
All the respondents, save the first respondent, were represented at the hearing. The first respondent had left Singapore on 20 October 1994 and had since made it known that he would not return to Singapore to answer the charge against him for contempt of court. No affidavit had been filed on his behalf. According to the Attorney General, he had served a set of the application and affidavits filed on the first respondent on 19 November 1994. Service of the same was acknowledged by the first respondent on 21 November 1994. The first respondent was also served with notice of the hearing of these proceedings on 6 December 1994. As the first respondent had chosen to ignore these proceedings, leave was granted for the hearing to proceed in his absence.

At the end of the hearing, I found that all the respondents had, by the publication of the article containing the offending passage, committed a contempt of court by scandalizing the judiciary of Singapore.
I now give my reasons.

The jurisdiction of the court to punish for contempt is given statutory effect by s 8(1) of the Supreme Court of Judicature Act (Cap 322).
The law relating to contempt of court is part and parcel of the English common law. In Singapore, it has been succinctly developed in a line of decisions by TS Sinnathuray J, namely, , and more recently, .

The locus classicus of this area of the law is the statement of Lord Russell of Killowen CJ in at p 40:

Any act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the courts is a contempt of court. The former class belongs to the category which Lord Hardwicke LC characterized as `scandalizing a court or a judge` ( Re Read and Huggonson [1742] 2 Atk 291 at p 469). That description of that class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court. The law ought not to be astute in such cases to criticize adversely what under such circumstances and with such an object is published; but it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen.

This right to criticize is explained by Lord Atkin in at p 335:

But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments, of ordinary men.

In , Edmund Davies LJ commented at p 156:

The right to fair criticism is part of the birthright of all subjects of Her Majesty. Though it has its boundaries, that right covers a wide expanse, and its curtailment must be jealously guarded against. It applies to the judgments of the courts as to all other topics of public importance. Doubtless it is desirable that critics should, first, be accurate and, secondly, be fair, and that they will particularly remember and be alive to that desirability if those they would attack have, in the ordinary course, no means of defending themselves.

The right to fair criticism is also protected by art 14(1)(a) of our Constitution which entrenches a citizen`s right to freedom of speech and expression.
But this right is not and cannot be absolute. Anyone exercising that right must observe a corresponding duty of responsibility. No one is entitled under the guise of freedom of speech and expression to make irresponsible accusations against, inter alia, the judiciary, otherwise public confidence in the administration of justice will be undermined.

Rich J in at pp 442-443 said:

Any matter is a contempt which has a tendency to deflect the court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the court`s judgments because the matter published aims at lowering the authority of the court as a whole or that of its judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. The jurisdiction is not given for the purpose of protecting the judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the court performs its functions. The law permits in respect of courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the courts may be established and maintained.

This right to criticize is, however, exceeded and contempt of court is committed if the publication impugns the integrity and impartiality of the court, even if it is not so intended.
See , where at p 80 Lord Goddard CJ said:

These cases clearly show that lack of intention or knowledge is no excuse, though it may have a great bearing on the punishment which the court will inflict and, in our opinion, they dispose of the argument that mens rea must be present to constitute a contempt of which the court will take cognizance and punish. The test is whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result just as it is no defence for the person responsible for the publication of a libel to plead that he did not know that the matter was defamatory and had no intention to defame.

was applied in . At p 374, TS Sinnathuray J said:

So a person charged with contempt of court cannot be heard to say that he did not intend to commit contempt, if in fact he did commit the offence.

Intention is, of course, relevant to the question of punishment.
It was so held by Hope JA in at p 911:

... the question whether the defendant`s statements constituted contempt must be determined by reference to their inherent tendency to interfere with the administration of justice, and that the defendant`s intention, while of some relevance in this regard, is of importance mainly in relation to whether the matter should be dealt with summarily, if any of the

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