Shadrake Alan v Attorney-General

CourtCourt of Three Judges (Singapore)
JudgeAndrew Phang Boon Leong JA
Judgment Date27 May 2011
Neutral Citation[2011] SGCA 26
Citation[2011] SGCA 26
Published date02 June 2011
Docket NumberCivil Appeal No 212 of 2010
Defendant CounselDavid Chong Gek Sian SC and Lim Sai Nei (Attorney-General's Chambers)
Hearing Date11 April 2011
Subject MatterContempt of Court
Plaintiff CounselRavi s/o Madasamy (LF Violet Netto)
Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This is an appeal against the decisions of the trial judge (“the Judge”) in Attorney-General v Shadrake Alan [2011] 2 SLR 445 (“Shadrake 1”) and Attorney-General v Shadrake Alan [2011] 2 SLR 506 (“Shadrake 2”). In Shadrake 1, the Judge found Mr Alan Shadrake (“the Appellant”) in contempt of court for eleven of the fourteen impugned statements. In Shadrake 2, the Judge sentenced the Appellant to six weeks’ imprisonment and a fine of $20,000 (in default of which, two weeks’ imprisonment, to run consecutively to the first term of imprisonment).

The present appeal raises – in some instances for the very first time before this court – important issues relating to the law of contempt which will need to be clarified before the relevant principles are applied to the facts. Foremost amongst these issues are the fundamental ones relating to the test for liability for contempt of court on the ground of scandalising the judiciary (“scandalising contempt”) as well as what the Judge characterised as the defences to scandalising contempt.

The factual background

This case arose from an application by the Attorney-General (“the Respondent”) to commit the Appellant, the author of Once a Jolly Hangman: Singapore Justice in the Dock (Strategic Information and Research Development Centre, 2010) (“the book”), for contempt of court in relation to certain passages contained in the book.

The decision below The decision on liability

In the court below, the Judge first undertook an extensive and comprehensive survey of the Singapore and Commonwealth case law on the applicable test for liability for scandalising contempt.

In the result, the Judge departed from previous decisions of the Singapore High Court with regard to the test for the actus reus in cases of scandalising contempt. The Judge did so in holding that the “real risk” test (viz, that the impugned statement must pose a real risk of undermining public confidence in the administration of justice before it is held to be contemptuous), in contradistinction to the “inherent tendency” test, was to be applied in Singapore (see Shadrake 1 at [50]).

In so far as the test for mens rea was concerned, the Judge held that the only mens rea needed for finding liability was that the publication of the allegedly contemptuous statement was intentional; it was not necessary to prove an intention to undermine public confidence in the administration of justice (see Shadrake 1 at [55]).

Turning to what the Judge characterised as the defences to scandalising contempt, the Judge considered that the defences of justification and fair comment in the law of defamation were not applicable (see Shadrake 1 at [59][69]), although his position with regard to the defence of justification was, with respect, unclear. The Judge was of the view that the only defence to scandalising contempt was that of fair criticism (see Shadrake 1 at [70][76]). According to the Judge, in order to raise a defence of fair criticism, the alleged contemnor must be able to show some objective basis for his contemptuous statements, the cogency of the rational basis required to support his allegations increasing correspondingly with the seriousness of the allegation made (see Shadrake 1 at [72]). The alleged contemnor must also be able to show that the allegation was made in good faith, viz, that the alleged contemnor must genuinely believe in the truth of the criticism he made (see Shadrake 1 at [73]). The Judge further held that the mere fact that the criticism is in outspoken language does not mean that it should necessarily be penalised (see Shadrake 1 at [75]). He also surmised that, contrary to English case law and earlier Singapore cases, there should not be a limit on the kind of criticisms which can be made against the court subject to the above criteria being met (see Shadrake 1 at [76]). We pause to observe, parenthetically, that the preferable approach might be to view the concept of fair criticism as going towards liability rather than as an independent defence – a point which we will deal with in more detail below (see generally at [59][86]).

Applying the law to the facts, the Judge held that three of the statements (viz, the third, sixth and twelfth statements, reproduced respectively at [92], [104] and [123] of Shadrake 1) did not amount to contempt, whilst the remaining eleven statements were contemptuous and did not qualify for the defence of fair criticism (see Shadrake 1 at [133][136]).

The decision on sentence

The Judge held that imprisonment would be the norm for the author of a publication which scandalises the court (see Shadrake 2 at [26]). This is because to constitute scandalising contempt, a statement must not only pose a real risk of undermining public confidence in the administration of justice but must also fall outside the ambit of fair criticism – the satisfaction of these criteria ipso facto making for a high degree of culpability (see Shadrake 2 at [26]).

Taking into account the high level of the Appellant’s culpability, including his stated intent to repeat his contempt by publishing an expanded second edition of the book; previous sentencing precedents (which were on the low end); the fact that the precise extent of the book’s circulation in Singapore was unclear; the fact that the Appellant was not a person with a credible and established reputation; and the desire to signal that the courts have no interest in stifling legitimate debate on the death penalty and other areas of the law, the Judge sentenced the Appellant to six weeks’ imprisonment (see Shadrake 2 at [42]).

Further, to send a signal that those who hope to profit from controversy by scandalising the court may expect to have their profits disgorged by a stiff fine in addition to other punishment, the Judge imposed a $20,000 fine on the Appellant, with two weeks’ imprisonment in default (see Shadrake 2 at [37] and [43]).

The issues

The main issues are relatively straightforward and are encompassed within the following three grounds of appeal relied upon by the Appellant: First, that the Judge had erred in his statement of the test for liability for scandalising contempt. In this regard, the Appellant contends that whilst the Judge correctly adopted the label of a “real risk” test, he erred in defining the content of the said test; Second, that the Judge had erred in his interpretation of the passages held to have given rise to the contempt; and Third, that the sentence meted out by the Judge was manifestly excessive.

We will proceed to deal with each of these issues seriatim. In dealing with the first issue, we will address not only the test for liability for scandalising contempt but also what the Judge characterised as the possible defences to contempt. This particular issue relates, in substance, to the applicable legal principles. The second issue involves the application of the relevant legal principles to the facts of this case – in particular, the impugned statements. At this point, viz, the confluence of both law and fact, we arrive at the most significant aspect of the present appeal, not least because of the very real effect it will have on the result of the case in general and the Appellant in particular. To this end, we will undertake an analysis of each statement in relation to the relevant legal principles. The third issue involves both the discussion of applicable legal principles in relation to sentencing in the context of scandalising contempt, as well as the application of those principles, if appropriate, to the facts of this case. We use the phrase “if appropriate” because there is, of course, the threshold issue of liability (which falls within the purview of the first and second issues). Put simply, before we can even begin to consider the issue of sentence, liability for contempt on the part of the Appellant must first be established (and it is important to note – and, indeed, it is axiomatic – that such liability must be established by the Respondent beyond a reasonable doubt). If no liability for contempt is established in the first place, then the issue of sentence does not need to be considered. That is why we have left the discussion of the legal principles relating to sentence to the final part of this judgment.

Let us now turn to consider the applicable legal principles relating to the test for liability for scandalising contempt as well as what the Judge characterised as the possible defences available.

The legal principles Introduction

Although counsel for the Appellant, Mr M Ravi (“Mr Ravi”), focused on the test for liability for scandalising contempt, we will also deal with the possible defences thereto because they are (as we shall see) directly relevant to the facts of the present appeal. As already mentioned, however (at [7]), these possible defences, particularly fair criticism, may be better viewed as going towards the issue of liability rather than constituting independent defences as such (see also the detailed analysis below at [59][86]).

Before proceeding to deal with the applicable legal principles with respect to liability for scandalising contempt, it would be appropriate to provide some background on the law relating to contempt.

At the most general level, it should be noted that the law relating to contempt of court operates against the broader legal canvass of the right to freedom of speech that is embodied both within Article 14 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) as well as the common law. The issue, in the final analysis, is one of balance: just as the law relating to contempt of court ought not to unduly infringe the right to freedom of speech, by the same token, that right is not an absolute one, for its untrammelled abuse...

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