Li Shengwu v The Attorney-General

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 01 April 2019
• Neutral Citation: [2019] SGCA 20
• Plaintiff Counsel: Vergis S Abraham and Asiyah binte Ahmad Arif (Providence Law Asia LLC)
• Date: 01 April 2019
• Docket Number: Civil Appeal No 166 of 2018
• Hearing Date: 18 January 2019
• Subject Matter: Service out of jurisdiction,Civil Procedure,Service
• Year: 2019
• Defendant Counsel: Francis Ng Yong Kiat SC, Tan Sze Yao, Elaine Liew Ling Wei and Tan Zhongshan (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2019] SGCA 20
• Published date: 06 April 2019

Steven Chong JA (delivering the judgment of the court): Introduction

Is the basis for exercising jurisdiction over a contemnor founded on the court’s civil or criminal jurisdiction? This question in turn entails an examination as to whether there is any difference between civil and criminal contempt in the first place to warrant a different treatment of their juridical bases. These are some of the essential questions which have emerged from this appeal to determine a related question: whether and how the High Court can exercise substantive and personal jurisdiction over a foreign contemnor.

For the purposes of this appeal, we speak of a foreign contemnor in the sense that such a contemnor was not within jurisdiction when the committal papers were served and not that he was outside jurisdiction at the time when the allegedly contemptuous statement was published. Leave of court was obtained for service outside jurisdiction on the appellant. Although the Attorney-General (“AG”) has argued that the appellant was in Singapore at the time of the publication of the allegedly contemptuous statement, the appellant himself does not take any factual position as to his whereabouts at the relevant time. His position is that this issue simply did not arise before the High Court Judge (“the Judge”) who heard the proceedings below.

The appellant’s application to set aside the service was dismissed by the Judge. He found that the High Court’s jurisdiction for contempt, whether civil or criminal, is based on s 7 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”). He also found that service was strictly not required to establish jurisdiction under s 7, but since it was common ground between the parties that compliance with O 11 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) was required, he held that the service was nonetheless within O 11 r 1(n) and (s) of the ROC.

The appellant maintains the same position that he took in the court below ie, that service of committal papers under O 11 r 1 was not permissible. The net effect of the appellant’s position is that under the ROC as it stood at the time of the allegedly contemptuous statement, it was not possible to serve committal papers on a foreign contemnor even if the statement was made when he was within jurisdiction. It should be highlighted that this is not the first case where committal papers have been served on an alleged foreign contemnor. However, this is the first occasion where service outside jurisdiction has been actively challenged. As such, the previous cases only go so far as to illustrate the point that service outside jurisdiction has been done before. They do not explicate the considered basis or reasons justifying the service. Nonetheless, the impact of the appellant’s challenge should be examined in light of previous decisions where service of committal papers outside jurisdiction was either held to be permissible or went unchallenged.

We should emphasise at the outset that this judgment does not decide the substantive merits of the AG’s application for an order of committal against the appellant. Instead, this case concerns the High Court’s jurisdiction over the alleged contempt committed by the appellant, in particular, whether leave to serve the committal papers on the appellant out of jurisdiction under O 11 r 1 was correctly given. References to “court” should be read to mean the High Court, save where the context requires otherwise.

Background Facts

The facts giving rise to the appeal may be stated briefly. On 15 July 2017, the appellant published a post on his Facebook page. The material part of that post stated that “the Singapore government is very litigious and has a pliant court system. This constrains what the international media can usually report”. The appellant later clarified in a subsequent Facebook post on 17 July 2017 that his earlier post was shared on the “Friends only” privacy setting, and indicated his surprise that his post appeared to have attracted interest from various media outlets and the Attorney-General’s Chambers (“AGC”).

On 21 July 2017, the AG wrote to inform the appellant that he considered the appellant’s 15 July post to have been made in contempt of court. The AG asked the appellant to purge his contempt by (a) deleting and removing the contemptuous material from his Facebook page and other social media accounts; (b) making a written apology and undertaking not to republish the contemptuous material, or similarly contemptuous material; and (c) issuing the signed written apology and undertakings prominently on his Facebook page. The AG requested the appellant to comply by 5.00pm on 28 July 2017.

On 27 July 2017, one day before the expiry of the deadline, the appellant requested an extension of time until 5.00pm on 4 August 2017 to respond to the AG’s letter. The AG agreed to this extension of time.

On 4 August 2017, as the appellant had not complied with the AG’s request, the AG commenced proceedings in Originating Summons No 893 of 2017 (“OS 893”) for leave to apply for an order of committal against the appellant. On the same day, the appellant wrote to the AG stating that the allegedly contemptuous material had been interpreted out of context. When read in context, the material was not contemptuous, and in any event the appellant had already amended the material to avoid misunderstandings. In a separate letter dated the same day, the appellant also requested the AG not to correspond with him at his parents’ address in Singapore, but instead to write to his address in Cambridge, Massachusetts in the United States of America.

On 8 August 2017, the AG wrote to notify the appellant that the AGC had filed OS 893 because of the appellant’s failure to comply with his request. The AG also informed the appellant that he was prepared to discontinue OS 893 if the appellant published the apology and undertaking as requested.

On 10 August 2017, the appellant replied to the AG acknowledging receipt of his letter of 8 August 2017 at his US address.

On 16 August 2017, the AG wrote to the appellant notifying him that a hearing date for OS 893 had been fixed for 21 August 2017, at 3.30pm. The AG also notified the appellant that if he did not publish his apology and undertaking before 3.30pm on 21 August 2017, the offer to discontinue OS 893 would be deemed to have been withdrawn.

On 21 August 2017, the High Court granted leave to the AG to apply for an order of committal against the appellant. The offer to withdraw OS 893 also lapsed with the appellant’s decision not to comply with the AG’s request.

Procedural history

On 27 September 2017, the AG applied for leave to serve the committal papers on the appellant out of jurisdiction. Leave was granted and the papers were duly served personally on the appellant on 17 October 2017, at his US address.

On 22 December 2017, the appellant applied to set aside the service of the committal papers in Summons 5843 of 2017 (“Summons 5843”). The Judge dismissed this application on 26 March 2018. It is this decision which is the subject of the appeal, and we elaborate on the Judge’s decision in greater detail below at [18] to [23].

The appellant was dissatisfied with the Judge’s decision in refusing to set aside the service of the committal papers. By Summons 1646 of 2018 (“Summons 1646”), the appellant applied for leave to appeal against the Judge’s decision. It was heard and dismissed by the Judge on 28 May 2018.

The appellant then sought leave from this court to appeal against the Judge’s decision in Summons 5843. We heard this application, Court of Appeal Originating Summons No 22 of 2018 (“CA/OS 22”), on 3 September 2018 and granted the appellant leave to appeal. At the hearing, we formulated two questions for the parties to address us in the appeal:

Question 1: (a) Was there any statutory basis for the court to exercise substantive jurisdiction over a foreign contemnor at the time of the commencement of proceedings? (b) If so, identify the statutory basis.

Question 2: If the answer to Question 1(a) is yes and if O 11 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) is necessary to confer jurisdiction, does O 11 r 1(t) apply retroactively or is there any other limb in O 11 r 1 that could apply in order to confer jurisdiction by enabling service to be effected under that provision?

Decision below

In Summons 5843, the Judge faced essentially the same two questions which are before us now. The Judge did not issue full written grounds for his decision, but engrossed his oral grounds of decision.

The Judge answered the first question by agreeing with the AG that s 7 of the SCJA was the proper basis for the court’s jurisdiction. He stated that “s 7 of the SCJA is the provision that both confers the power as well as the jurisdiction to commit for contempt”.

The Judge also rejected the appellant’s submission below that it was s 16 of the SCJA that formed the basis of the court’s jurisdiction over a foreign contemnor. He explained that it was “difficult to understand” how s 16, “which concerns the civil jurisdiction of the High Court, can be regarded as being applicable to contempt proceedings which are quasi-criminal in nature”.

As to the second question, the Judge was of the view that service was not required to found jurisdiction under s 7. That said, he noted that it was the parties’ agreed position that compliance with O 11 r 1 was necessary to serve the committal papers out of jurisdiction, although he also stated that he harboured “some doubt” as to the AG having made that concession. He indicated that he found himself driven to decide the question whether either O11 r 1(n) or (s), the two limbs relied upon by the AG, were satisfied. He held that they were. Limb (n) requires a claim under written law, and the Judge held that the relevant written law was s 7(1) of...