Dow Jones Publishing Co (Asia) Inc v Attorney General

• Judge: Chan Sek Keong J
• Judgment Date: 01 June 1989
• Neutral Citation: [1989] SGCA 8
• Subject Matter: 'Engaging in the domestic politics of Singapore',Review of Minister's discretionary powers,Scope of judicial review,Certiorari,Duty to act fairly,Restriction of circulation of foreign newspaper,Whether s 16 of Newspaper and Printing Presses Act derogates from freedom of speech,Freedom of speech and expression,Constitutional Law,Administrative Law,Words and Phrases,Whether appellants entitled to right to be heard,art 14(1) & 14(2) Constitution of the Republic of Singapore,s 16 Newspaper and Printing Presses Act (Cap 206),Constitutional validity of s 16 of Newspaper and Printing Presses Act
• Plaintiff Counsel: Louis Blom-Cooper QC and Howard Cashin (Murphy & Dunbar)
• Published date: 19 September 2003
• Defendant Counsel: The Attorney General and Jeffrey Chan
• Court: Court of Three Judges (Singapore)

Cur Adv Vult

This is an appeal by Dow Jones Publishing Co (Asia) Inc, the owners of the newspaper The Asian Wall Street Journal (AWSJ) against the judgment of TS Sinnathuray J dismissing an application for two orders of certiorari against two decisions made on 9 February 1987 by the Minister of Communications and Information (the minister) (i) declaring the AWSJ a foreign newspaper published in Hong Kong, to be a newspaper `engaging in the domestic Politics of Singapore` pursuant to s 16 of the Newspaper & Printing Presses Act (Cap 206) (NPPA) and (ii) restricting the sale and distribution in Singapore of the said newspaper to 400 copies a day until further notice from its then existing number of about 5000 copies a day.

The factual background to the making of the two orders by the minister is as follows. On 25 August 1986, Parliament passed Act 22 of 1986 to amend the NPPA by the inclusion of s 18A (which is s 16 in the 1985 revised edition of the Act). This provision empowers the minister, by order published in the Gazette, to declare any newspaper published outside Singapore to be a newspaper engaging in the domestic politics of Singapore, and upon the publication of such a declaration, (a) no person shall, without the prior approval of the minister, sell or distribute or import for or possess for sale or distribution any declared foreign newspaper; (b) the minister may grant his approval subject to such conditions as he may impose or may refuse to grant or revoke such approval without assigning any reason; and (c) the minister may restrict the sale or distribution of each issue of any declared foreign newspaper granted approval to such number of copies as he thinks fit, and may require such copies to be marked in such manner as he may direct.

The immediate event which culminated in the making of the two orders by the minister was the publication in the AWSJ of an article on 12-13 December 1986 on its front page bearing the caption `Singapore Exchange Puzzles Financiers` (the SESDAQ article). This was a long article on the establishment by the Stock Exchange of Singapore with the approval and encouragement of the Monetary Authority of Singapore (MAS) of a secondary stock exchange called the Stock Exchange of Singapore Dealing and Automated Quotation, acronymously `SESDAQ`, to enable small companies in Singapore which need funding in the capital market to list their shares in SESDAQ. On the day of publication, ie 12 December 1986, Koh Beng Seng, a director of MAS, wrote a letter (the MAS letter) to the editor of AWSJ and complained that the writer of the article, viz Stephen Duthie, had

(1) by the tone of his remarks and choice of words revealed his bias which was also confirmed by errors of fact contained in the article;

(2) implied that the government had pushed for the establishment of SESDAQ independent (ie regardless) of `the needs and desires of the market place`;

(3) contended that `the government will use the exchange to unload state-controlled and government-backed companies`, specifically `that a company controlled by Temasek Holdings ... was ordered by Temasek to prepare for an Unmediated listing, even though the concern`s merchant banker recommended delaying as much as a year`, that this was false because there was no such company;

(4) alleged the new market is to look `for a way to push along the road` Economic Development Board listing had nothing to do with the government;

(5) criticized the proposed requirement that the lead merchant banker managing a flotation must also be a market maker (both to buy and to sell) in that stock for a year by quoting a worried banker as having remarked: `as incredible as it may seem, you could go to work one morning holding 1% of a company`s shares, and return home that very evening with that company as an associate concern of the bank`, that although Duthie then quoted bankers and brokers involved in the planning of SESDAQ dismissing these complaints, he did not state his own position but by repeating the remarks must presumably believe it had some substance.

This letter was sent to the editor of the AWSJ in the expectation that he would publish it in the newspaper. Instead, the editor, FL Zimmerman, replied on 2 January 1987 to say:

(1) the AWSJ had conducted a thorough investigation of the matter and concluded that the article was fair and accurate;

(2) that there were no errors of facts, the AWSJ being satisfied that the company controlled by Temasek Holdings did exist;

(3) that the AWSJ disagreed with Koh`s opinion that the tone of the article and the choice of words revealed bias;

(4) that Duthie had worked on the article for over two and a half months and that the result was a measured and appropriate assessment of the subject;

(5) that Koh`s comments were an unwarranted attack on Duthie`s professionalism;

(6) that the MAS letter contained errors of fact and seriously misrepresented Duthie and his article which he proceeded to identify as follows:

(a) Koh`s statement that the idea of SESDAQ originated in the banking and finance sub-committee of the economic committee, was wrong because the sub-committee in making the recommendation reacted to a widely discussed public issue;

(b) ) that Koh`s statement that the government had nothing to do with the choice of companies to be listed, etc was wrong because it was AWSJ`s understanding that the DBS, although not a merchant bank but which was controlled by the government, was expected to bring more companies to market than any other institution;

(c) ) that Koh`s claim that it was false to say that the government will use the new exchange to unload state-controlled and government-backed companies was wrong as there was evidence that Mr Chua Soo Tian, director of the Small Enterprise Bureau of the EDB had told bankers that the EDB was financing 1000 companies of which several hundred were eligible for listing;

(d) ) that Duthie was neither making allegations, criticisms or contentions in his article but merely repeating what others had said;

(e) that Koh had used pejorative terms like `financial difficulties` and `substandard companies` when Duthie had written of companies that lacked professional assistance and modern management techniques, companies which were not necessarily second-rate or substandard.

Zimmerman concluded his letter by stating that he was not prepared to publish the MAS letter `for attacking his staff member for unprofessional conduct of which he was not guilty, and alleging errors that do not exist`, but that he was willing to publish a letter stating Koh`s `point of view on the subject dealt with in the article`. This letter from Zimmerman drew a reply from Koh on 17 January 1987 in which Koh made the following points:

(a) that it was unusual for a newspaper which habitually champions freedom of speech to refuse to publish views it disagreed with and to allege as a reason therefore that the MAS letter was defamatory;

(b) that the MAS letter was not defamatory of Duthie;

(c) that it was the Singapore Government which had been defamed because Duthie had implied that it will be presiding over the disposal of dud companies, which implication had no factual basis but was based on a complete misrepresentation of the views of Chua of the EDB;

(d) that if the AWSJ had evidence that Temasek Holdings had ordered one of its companies to be listed, the name of the company should be disclosed;

(e) that Duthie`s attribution of his scurrilous attacks to a miscellany of anonymosity which did not absolve Duthie or the AWSJ from moral or legal responsibility for reporting and publishing hitherto private views;

(f) that the AWSJ should publish the MAS letter, Zimmerman`s reply and this reply for its readers to judge for themselves and that if AWSJ were to refuse, the chairman of the AWSJ would have no alternative but to draw his own conclusion.

To this letter, Mr Zimmerman replied on 23 January 1987 as follows:

(a) that he regretted that Koh did not accept his offer to write a reasoned statement of his views for publication in the AWSJ;

(b) that the AWSJ had published letters from readers stating various viewpoints and would continue to do so;

(c) that the dispute could have been avoided if Koh had agreed to Duthie`s request for an interview at the time he was preparing the article.

In between this exchange of letters between Koh and Zimmerman, the Ministry of Communications and Information had on 15 December 1986 written to the AWSJ forwarding the original of the MAS letter for publication in the AWSJ at the earliest date. On 23 December 1986, the Ministry requested the AWSJ to give its decision whether it would publish the MAS letter. There is no evidence that the AWSJ replied to the Ministry in regard to these two requests. Thus it came about that on 9 February 1987, the minister made and gazetted the order declaring the AWSJ as a newspaper engaging in the domestic politics of Singapore and also made a second order restricting its circulation in Singapore to 400 copies until further order. To explain its actions, the government on the same day made a press release in which was set out the events we have summarized above. Since the press release contains two matters which have been relied on by the appellants in support of their appeal, we reproduce below the relevant portions of the press release:

The action is necessary because the AWSJ has persistently refused to publish a Singapore Government reply to an AWSJ article. The article concerns the proposed second securities market in Singapore, also known as SESDAQ ...

This reply (ie Zimmerman`s letter of 23 January 1987) shows that the AWSJ will not allow its readers to read and judge for themselves the Singapore side of an unbalanced story. It proves that the AWSJ is not proud of Mr Zimmerman`s specious statement in his two letters to Mr Koh. In...