Au Wai Pang v Attorney General

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 30 November 2015
• Neutral Citation: [2015] SGCA 61
• Year: 2015
• Date: 30 November 2015
• Published date: 04 December 2015
• Hearing Date: 08 September 2015
• Plaintiff Counsel: Peter Low, Choo Zheng Xi, Low Ying Li Christine, Mannar Raj Kumar and Jason Lee Hong Jet (Peter Low LLC)
• Citation: [2015] SGCA 61
• Defendant Counsel: Francis Ng, Toh Puay San, Elaine Liew and Teo Lu Jia (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 31 of 2015

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This is an appeal against the decision of the High Court judge (“the Judge”) in Attorney-General v Au Wai Pang [2015] 2 SLR 352 (“the Judgment”). The Judge found that Au Wai Pang (“the Appellant”) was guilty of scandalising the court in relation to his creation and publication of an article titled “377 wheels come off Supreme Court’s best-laid plans” (“the Article”) and ordered a fine of $8,000 to be imposed upon him. In these proceedings, the Appellant appeals against his conviction.

Facts

The Appellant is a Singapore citizen. He writes articles on socio-political issues with a particular focus on Singapore. He publishes these articles on his blog entitled Yawning Bread (accessible at http://yawningbread.wordpress.com) (“the Blog”).

On 5 October 2013, the Appellant published the Article on the Blog. There were four main parts to the Article, as follows: First, just below the title, there was a video clip of a news report of a traditional African gay wedding. Just below the video clip was a description that read:

April 2013 in Natal saw South Africa’s first gay wedding conducted according to traditional Zulu rites. Same-sex marriage has been legal in South Africa since December 2006.

The second and third parts constituted the main text of the Article. The second related to what the Supreme Court’s “best-laid plans” were and how the “wheels” had “come off” them. In this part, the Appellant made the following points: (i) Tan Eng Hong v Attorney-General [2013] 4 SLR 1059 (“Tan Eng Hong”) was heard on 6 March 2013 by Justice Quentin Loh (“Loh J”). Judgment was delivered on 2 October 2013, six months after the case was heard. (ii) Lim Meng Suang and another v Attorney-General [2013] 3 SLR 118 (“Lim Meng Suang”) was heard on 14 February 2013, also by Loh J. Judgment was delivered on 10 April 2013. (iii) The “common view” was that Chief Justice Sundaresh Menon (“the Chief Justice”) wanted to be part of the three-judge bench that heard the constitutional challenge relating to s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“s 377A”). He could do so in relation to the appeal arising from Lim Meng Suang but not Tan Eng Hong. This is because he was the Attorney-General at the time the latter was “going through” the lower courts. (iv) The “strange calendaring” (as in (i) and (ii), particularly in relation to the release of the judgments) allowed the appeal from Lim Meng Suang to proceed to the Court of Appeal first. Further, Tan Eng Hong was “red-lighted” by a delay in delivering the judgment so that an appeal could not be filed until the appeal from Lim Meng Suang was determined. This would prevent the possibility of an application to consolidate the appeals which, if successful, would mean that the Chief Justice would have to recuse himself. (v) In August 2013, Mr M Ravi (“Mr Ravi”), counsel for Mr Tan Eng Hong, applied to the High Court to be recognised as an interested party in the Court of Appeal hearing on the appeal arising from Lim Meng Suang. From a “legal point of view”, such an application would be very difficult to deny. (vi) Phone calls were thereafter exchanged between the High Court and Mr Ravi’s office through which the “lawyer was persuaded to withdraw his application on the understanding that the judgement for Tan Eng Hong would be released shortly”. In short, and tying in the points made in this second part of the Article with the title, the “Supreme Court’s best-laid plans” were to delay the release of the High Court’s judgment in Tan Eng Hong so that the appeal arising from Lim Meng Suang could be heard first. This was done to enable the Chief Justice to be part of the coram that would hear – and determine – the appeal. These plans failed (ie, the “377 wheels” came off these plans) because Mr Ravi applied to intervene in the appeal arising from Lim Meng Suang. The third part of the Article dealt with “what happens next” – ie, after the aforementioned wheels had come off. Here, the Appellant made the following points: (i) Mr Ravi is likely to apply for a consolidation of the two cases at the appeal stage. (ii) There is a good likelihood that the consolidation application will succeed although “Singapore courts are known to fly off into logic of their own”. (iii) If the two cases are consolidated, the Chief Justice would have to recuse himself. The other two Judges of Appeal would not be affected. It is unclear which judge will be chosen to replace the Chief Justice. It is also “very hard to see” what impact that will have on the chances of success of the constitutional challenge. The fourth part consisted in the 12 responses that followed. These responses were published on the same page as the first three parts. The Appellant moderates the responses on his Blog (ie, he decides whether or not to allow a response to be published on the Blog). All 12 responses had been posted at the time the Respondent commenced these proceedings by filing an application for leave to apply for an order of committal against the Appellant (see below at [4]). To date, the 12 responses remain on the site (although the Article has been removed) (see https://yawningbread.wordpress.com/2013/10/05/377-wheels-come-off-supreme-courts-best-laid-plans/ (accessed 8 November 2015)). To be clear, the 12 “responses” constitute both primary responses (ie, responses to the second and third parts of Article) and secondary responses (ie, replies to primary responses). Although we find that these 12 responses may constitute part of the Article – and may be relevant in interpreting and understanding the Article – the Appellant had not made any submissions in this regard. More importantly, no effort was made to identify the individuals responsible for each of the responses (given that the names of the accounts used by these individuals in posting these responses were likely monikers). For want of evidence and argument, we say nothing further about the responses. Proceedings below

This case reached the courts by an application for leave to apply for an order of committal in ex parte Originating Summons No 1098 of 2013, filed on 14 November 2013 by the Prosecution (“the Respondent”). The application concerned two articles posted by the Appellant on the Blog – both the Article and an article titled “Church sacks employee and sues government – on one ground right, on another ground wrong” (“the Robinson’s Article”) which was published on 12 October 2013.

The application for leave was heard by the Judge on 26 and 27 November 2013. She granted the application in relation to the Article but not the Robinson’s Article. Thereafter, on 2 December 2013, the Respondent filed Summons No 6209 of 2013 (“SUM 6209”), an application for the Appellant to be punished for his contempt of court in relation to the Article.

On 12 May 2014, after having been granted an extension of time, the Respondent filed a notice of appeal against the Judge’s denial of leave in relation to the Robinson’s Article. The appeal was heard by this court on 30 July 2014. This court allowed the appeal, delivering its oral judgment as follows:

This being a leave application, all that needs to be shown is a prima facie case. We have considered the arguments raised by the appellant and are satisfied that they have met the threshold. On the question of possible linkage, we see that there are grounds to hold that the second could be a follow up to the first article. We make no determination on that, and leave it to the judge hearing the merits to determine if the two articles are linked. The appeal is allowed and leave is granted to the applicant to apply for an order of committal for the second article. We also grant the application for the substantive hearings for an order of committal in respect of the first and second articles to be consolidated in OS 1098 and heard together in the High Court, and for leave to be granted for an amended statement to be filed for the consolidated substantive hearing in OS 1098.

In the light of this court’s decision on the Robinson’s Article, on 12 August 2014, the Respondent applied to amend SUM 6209 (in Summons No 3952 of 2014) so as to include an application for the Appellant to be punished for contempt in relation to the Robinson’s Article. The application was allowed on 18 August 2014. Also on that date, Summons No 6209 of 2013 (Amendment No 1) was filed.

Parties appeared before the Judge on 21 October 2014. After hearing arguments, the Judge reserved judgment.

The decision below

On 21 January 2015, the Judge delivered the Judgment. She convicted the Appellant of scandalising contempt only in relation to the Article (and not the Robinson’s Article). She reasoned as follows: First, the offence of scandalising the court comprised two elements – the actus reus and the mens rea, respectively. The mens rea requirement was simply that the respondent had intentionally published the impugned statement (see the Judgment at [14], citing Shadrake Alan v Attorney-General [2011] 3 SLR 778 (“Shadrake”) at [23]; and the Judgment at [16]–[36] where the Judge rejected the stricter test in Dhooharika v Director of Public Prosecutions (Commonwealth Lawyers’ Association intervening) [2014] 3 WLR 1081 (“Dhooharika”)). The actus reus requirement was as follows: There must be a real risk that public confidence in the administration of justice is, or would be, undermined as a result of the impugned statement (see the Judgment at [38]–[40]). In this regard, the Judge provided further guidance on how the existence of a “real risk” may be ascertained as follows: Where multiple “impugned statements” – or articles – are concerned, the court should look at each offending article separately and apply the “real risk” test based on the matters prevailing at the...