RETHINKING THE DICHOTOMY BETWEEN CIVIL AND CRIMINAL CONTEMPT OF COURT

• Date: 01 December 2015
• Author: ZHUANG WenXiong LLB (National University of Singapore), Llm (New York University); Assistant Registrar, Supreme Court of Singapore.
• Citation: (2015) 27 SAcLJ 555
• Published date: 01 December 2015

There is ample authority, both in Singapore and the rest of the common law world, that contempt of court comprises civil and criminal contempt. There is, surprisingly, a legal vacuum with respect to the procedure to be followed for criminal contempt, due to the operation of O 1 r 2(2) of the Rules of Court and s 4 of the Criminal Procedure Code. Legislative intervention in this regard is not a guarantee. The civil-criminal dichotomy is an accident of history born out of expediency, and is extremely difficult to apply. All civil instances of contempt implicate public policy concerns and could very well be classified as being criminal in nature simply because an order of court is involved and judicial legitimacy is at stake. The civil-criminal dichotomy ought to be judicially abolished, with the result that O 52 of the Rules of Court would apply to all cases of contempt. There is also some consideration of how waiver, the right to appeal, joinder of the Attorney-General as a party, and privilege will operate if the dichotomy were to be abolished.

I. Introduction

1 Many reported Singapore cases on contempt of court have been commenced by way of an application under O 52 of the Rules of Court.1 Order 1 r 2(2) of the same states that the Rules of Court shall not apply to criminal proceedings, which are instead governed by the Criminal Procedure Code2 (“CPC”). There is ample authority that contempt comprises civil and criminal contempt. On a plain reading of O 1 r 2(2) of the Rules of Court, O 52 cannot be used to commence criminal contempt proceedings. At the same time, s 4 of the CPC states that it only applies to offences under the Penal Code3 or any other written law. This leads to the absurd conclusion that there are no express provisions that

deal with the commencement of criminal contempt proceedings,4 and calls into fundamental question the bifurcation of contempt into civil and criminal contempt. Ultimately, this dichotomy between civil and criminal contempt is unsound and should not be retained in Singapore law.

2 This article is divided into three parts. The first deals with the question of whether contempt of court is indeed subdivided into criminal and civil varieties. The second explores whether the criminal-civil dichotomy ought to be recognised in Singapore law. The third will explore the practical ramifications of the criminal-civil dichotomy, and propose a solution out of the quandary.

II. Distinction between criminal and civil contempt

3 It is clear beyond peradventure that, under English common law, certain types of contempt are criminal offences. Wellesley v The Duke of Beaufort5 (“Wellesley”), an English case decided in 1831, concerned a member of the House of Commons, Wellesley, who carried off his infant daughter despite her being a ward of the court. The amicus curiae submitted that nothing could be found in prior cases to justify a distinction between civil and criminal contempt.6 Lord Brougham, the Lord Chancellor at that time, disagreed and distinguished between civil and criminal contempt on the basis of whether the order for committal is in the nature of punishment or to compel performance.7

4 The distinction de jure stands in English law even today: Arlidge, Eady & Smith on Contempt states that contempt is classified as criminal where the act “so threatens the administration of justice that it requires punishment from the public point of view” whereas civil contempt “involves disobedience of a court order or undertaking by a person involved in litigation”.8 As recently as 1972, the English Court of Appeal remarked in Jennison v Baker9 that criminal and civil contempt bear much

the same character, and in doing so continued to maintain the distinction. Parliament declined to abolish the distinction when the Contempt of Court Act 198110 was passed.11

5 The situation is much the same in other common law jurisdictions. The US Supreme Court, in Gompers v Buck's Stove & Range Co12 (“Gompers”), held that civil and criminal contempt can be distinguished by their character and purpose; for “civil contempt the punishment is remedial and for the benefit of the complainant” whereas for “criminal contempt the sentence is punitive, to vindicate the authority of the court”. The Supreme Court of Canada, in Poje v British Columbia (Attorney General)13 (“Poje”), likewise drew a distinction between criminal contempt and “contempt in procedure”, and went one step further to state that disobedience of court orders could also amount to civil contempt.

6 It is submitted that the position in Singapore is the same. Sundaresh Menon CJ, in Aurol Anthony Sabastian v Sembcorp Marine Ltd14 (“Aurol”), explicitly drew a distinction between civil and criminal contempt. An action for the former is directed at securing compliance with an order of court while an action for the latter need not be confined to parties who are directly bound by an order of court.15

7 There is in fact older Singapore authority which ostensibly contradicts Aurol in holding that contempt of court is always regarded as a criminal matter. In Re Abdul Aziz's Application16 (“Abdul Aziz”), the applicant commenced proceedings by originating motions for orders nisi that two respondents show cause why writs of attachment should not issue against them for what was alleged to be contempt of court for publishing a statement relating to charges that the applicant faced in a Criminal District Court. Rose CJ said that “[i]t would seem to be clear that while contempt of court is an offence sui generis it has long been regarded as a criminal matter”,17 and in doing so he cited O'Shea v O'Shea and Parnell18 (“O'Shea”) and King v Parke19 (“Parke”) in support. Both merit analysis.

8 In O'Shea the contempt of court consisted of the publication of sub judice comments on a pending dissolution of marriage. The English Court of Appeal was faced with the issue of whether this was a “criminal cause or matter” within the meaning of s 47 of the Judicature Act 1873,20 and it held that sub judice contempt did fall within the mentioned section and was thus not appealable to the Court of Appeal. Cotton LJ, Lindley LJ and Lopes LJ, in separate judgments, nevertheless unanimously recognised that there were non-criminal forms of contempt.21 In Parke the contempt consisted of sub judice comments on forgery charges. The defendant argued that the High Court did not have jurisdiction because at the time of publication there were no proceedings pending in any court but the petty sessional court. Wills J analysed a string of cases where sub judice comments were made on criminal matters, but at the same time there “would probably be cases in which comments had been made affecting proceedings in matters pending on the civil side, and if so would afford no assistance in the present discussion”.22 Thus Parke does not stand at all for the proposition that contempt is always criminal in nature.

9 It is thus submitted that Rose CJ, in Abdul Aziz, cannot be interpreted as saying that all instances of contempt of court are criminal in nature; the references to contempt must be read as referring only to sub judice contempt. Even if this were not the case, and Rose CJ did in fact intend to propound the general proposition that all instances of contempt are criminal in nature, this is an unsustainable proposition which relies on erroneous readings of O'Shea and Parke. The true position, as stated in O'Shea, is that “there are many contempts of Court that are not of a criminal nature”.23

10 Thus, Aurol is in line with the rest of the common law world and correctly states the current position in Singapore, namely, that contempt is bifurcated into civil and criminal contempt. This leads to the larger question of whether this bifurcation ought to hold. But before addressing this question a brief survey on how the various varieties of contempt can be classified under the criminal-civil dichotomy will first be taken.24

11 Contempt can consist in the disobedience of a court order. This is, of course, the subject of Aurol, Gompers and Poje and could be civil,

criminal or both civil and criminal in nature depending on the facts of the case.

12 Contempt in facie curiae, or contempt in the face of the court, comprises the unlawful interruption, disruption or obstruction of court proceedings; at the minimum this would include misconduct occurring within the courtroom within the personal view and knowledge of the court.25 Most of these cases would be criminal in nature because the mischief relates to the integrity of ongoing court proceedings. But there is conceivably a class of such cases which is civil in nature, where the conduct in question is in facie curiae and concurrently involves disobeying a court order. An example would be a judge ruling that certain matters are privileged and not to be disclosed in court, but with a witness ignoring that order and contumaciously referring to those matters. Thus, depending on the facts, in facie curiae contempt could be civil, criminal or both.

13 Contempt can also consist of acts which prejudice or interfere with particular proceedings before the courts, or sub judice contempt.26 One example would be a publication which prejudices the fair trial of a case.27Sub judice contempt would ostensibly appear to be criminal contempt par excellence because the court process is at stake. But this is not necessarily so: if a party to civil proceedings deliberately and continuously puts out public statements aimed at improperly swaying the presiding judge and the public, her opponent would surely be entitled to injunctive relief restraining that party from putting out further statements. The application for injunctive relief would have a civil flavour.28

14 Lastly, contempt can consist of conduct which interferes with the administration of justice in general. Publishing matter which scandalises the court is one class of such contempt. On any...