Attorney-General v Shadrake Alan

• Judge: Quentin Loh J
• Judgment Date: 03 November 2010
• Neutral Citation: [2010] SGHC 327
• Plaintiff Counsel: Hema Subramanian, Low Siew Ling and Lim Sai Nei (Attorney-General's Chambers)
• Docket Number: Originating Summons No 720 of 2010
• Defendant Counsel: M Ravi (L F Violet Netto)
• Hearing Date: 19 October 2010,20 October 2010,18 October 2010
• Subject Matter: Contempt of court
• Published date: 22 November 2010
• Court: High Court (Singapore)

Quentin Loh J: Introduction

This is an application by the Attorney-General to commit Mr Alan Shadrake, the author of Once a Jolly Hangman: Singapore Justice in the Dock (Petaling Jaya, Malaysia: Strategic Information and Research Development Centre, 2010) (“the book”), for contempt of court in relation to certain passages in the book. These passages are said to scandalise the judiciary by alleging or insinuating that: the Singapore Judiciary, in determining whether to sentence an accused person to death, succumbs to political and economic pressures, and more generally does not mete out justice impartially, lacks independence and is complicit in an abuse of the judicial process; the Singapore Judiciary is biased, particularly against the weak, poor and less educated, or is otherwise guilty of impropriety; and the Singapore Judiciary is a tool of the People’s Action Party to muzzle political dissent in Singapore. While the alleged contempt is criminal in nature, the application for committal is made, as is usual in such cases, pursuant to O 52 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed).

The Law: Generally

The contempt being alleged here is the contempt of scandalising the court. The law in Singapore on this issue can be mainly found in nine reported decisions of the High Court spanning from September 1967 to February 2009: Re application of Lau Swee Soong [1965–1967] SLR(R) 748 (“Lau Swee Soong”); A-G v Pang Cheng Lian [1974–1976] SLR(R) 271 (“Pang Cheng Lian”); A-G v Wong Hong Toy [1983–1984] SLR(R) 34 (“Wong Hong Toy”); A-G v Zimmerman Fred [1985–1986] SLR(R) 476 (“Zimmerman”); A-G v Wain Barry J [1991] 1 SLR(R) 85 (“Wain”); A-G v Lingle [1995] 1 SLR(R) 199 (“Lingle”); A-G v Chee Soon Juan [2006] 2 SLR(R) 650 (“Chee Soon Juan”); A-G v Hertzberg Daniel [2009] 1 SLR(R) 1103 (“Hertzberg”); and A-G v Tan Liang Joo John [2009] 2 SLR(R) 1132 (“Tan Liang Joo”). There are other cases which also touch on this issue and I will be referring to them in due course.

Counsel vigorously disputed the appropriate test to be applied in deciding whether the statements complained of have scandalised the court. Ms Subramanian for the Attorney-General submitted that the law has been settled by the decisions set out above. The test to be applied is the inherent tendency test, viz, whether the acts or words complained of had the inherent tendency to interfere with the administration of justice. This test is said to countenance a lower threshold. This is so even though Ms Subramanian accepts that the burden on her is proof beyond a reasonable doubt. Mr Ravi, counsel for Mr Shadrake, argued that the real risk test should be applied, ie, the Attorney-General had to prove that the acts or words complained of had a real risk of undermining public confidence in the administration of justice in Singapore. This test is said to have a higher threshold relative to the inherent tendency test. Mr Ravi argues that other jurisdictions apply the real risk test and we should do the same. Mr Ravi also argues that what Mr Shadrake wrote is also fair criticism and within the right of free speech guaranteed under Article 14 of our Constitution. There is no Court of Appeal decision on this point. Mr Ravi says I am therefore free to depart from these earlier decisions and urged me to do so as our society is now more mature and more educated.

Ms Subramanian for the Attorney-General submitted that the “inherent tendency” test has been affirmed and settled by these decisions, which I should follow. In this regard she cited Mah Kah Yew v PP [1968-1970] SLR(R) 851 and Young v Bristol Aeroplane [1944] 1 KB 718. I do not think that either Mah Kah Yew or Young v Bristol Aeroplane assists the Attorney-General here. Mah Kah Yew did not lay down a rule of horizontal stare decisis for the High Court, and the rule of horizontal stare decisis stated in Young v Bristol Aeroplane is inconsistent with Court of Appeal authority expressly affirming that the High Court is not bound by its previous decisions: see Wong Hong Toy v PP [1985-1986] SLR(R) 656 at [11]. In fairness, Ms Subramanian did concede that I am not technically bound by previous decisions of the High Court.

It is therefore necessary, in light of Mr Ravi’s arguments for changing the test and the law, for me to consider the Singapore cases, the decisions from other jurisdictions cited to me by Mr Ravi, as well as the substantive reasons for and against departing from the present position. However, I must bear in mind that the decisions of my learned colleagues and predecessors over the past four decades are entitled to the very greatest respect and unless there are compelling reasons to do so, I should not depart from them.

The rationale for the law and its relation with the freedom of speech

It is appropriate to begin the discussion by recalling the rationale underlying the contempt of scandalising the court, a rationale which is often stated but still bears repetition. In Wilmot J’s draft judgment in R v Almon (1765) Wilm 243 at 255–256, which was not delivered because the prosecution was dropped, but, according to the reporter’s note, was nevertheless reported because “it was thought to contain so much legal knowledge on an important subject, as to be worthy of being preserved”, the rationale is articulated thus:

The arraignment of the justice of the Judges, is arraigning the King’s justice; it is an impeachment of his wisdom and goodness in the choice of his Judges, arid excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are the channels by which the King’s justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open, and uninterrupted current, which it has, for many ages, found all over this kingdom ...

[Emphasis added]

The importance of public confidence in the administration of justice, emphasised in Wilmot J’s eighteenth century opinion, has continued to receive judicial affirmation across common law jurisdictions in modern times. Lord Diplock declared in A-G v Times Newspaper Ltd [1974] 1 AC 273 at 307 (“Times Newspaper”) that:

... in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another. "Contempt of court" is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.

[Emphasis added]

And at 309, that:

The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.

[Original emphases removed; emphasis added)

In S-G v Radio Avon Ltd [1978] 1 NZLR 225 (“Radio Avon”), the New Zealand Court of Appeal, whose judgment was delivered by Richmond P, stated at 230 that:

The justification for this branch of the law of contempt [ie scandalising the court] is that it is contrary to the public interest that the public confidence in the administration of justice should be undermined.

[Emphasis added]

In Gallagher v Durack (1983) 152 CLR 238 at 243, the majority of the High Court of Australia, comprising Gibbs CJ, Mason, Wilson and Brennan JJ, stated that:

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 courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment “is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable”: R. v. Fletcher; Ex parte Kisch, per Evatt J.

[Emphasis added]

In Secretary for Justice v Oriental Press Group Ltd and others [1998] 2 HKC 627 (“Oriental Press Group”), the Hong Kong Court of First Instance stated at [48] that:

A civilised community cannot survive without effective machinery for the enforcement of its laws. The task of enforcing those laws falls on the...