Singapore Democratic Party v AG
| Jurisdiction | Singapore |
| Judge | Woo Bih Li JAD |
| Judgment Date | 10 May 2022 |
| Docket Number | Originating Summons No 856 of 2020 |
| Court | High Court (Singapore) |
[2022] SGHC 100
Woo Bih Li JAD
Originating Summons No 856 of 2020
High Court
Civil Procedure — Originating processes — Whether originating summons should be heard in open court rather than in judge's chambers on ground that proceedings raised constitutional issues of public interest and involved Singapore's population — Order 28 r 2 Rules of Court (2014 Rev Ed)
Statutory Interpretation — Construction of statute — Applicable approach to determine whether “Part 3 Direction” under Protection from Online Falsehoods and Manipulation Act 2019 (Act 18 of 2019) could be set aside — Whether subject statement was statement of fact — Whether subject statement was false — Section 17(5)(b) Protection from Online Falsehoods and Manipulation Act (Act 18 of 2019)
Statutory Interpretation — Construction of statute — Costs orders for appeals under Protection from Online Falsehoods and Manipulation Act 2019 (Act 18 of 2019) — Sections 17, 29, 35 and 44 Protection from Online Falsehoods and Manipulation Act 2019 (Act 18 of 2019) — Rule 15 Supreme Court of Judicature (Protection from Online Falsehoods and Manipulation) Rules 2019
Held, dismissing the appeal:
(1) Rule 11 of the POFMA Rules provided that the court could conduct the hearing of a POFMA appeal “in such manner as [it] thinks fit”. As r 5(1) of the POFMA Rules provided that POFMA appeals had to be brought by originating summons, the starting point remained O 28 r 2 of the Rules of Court (2014 Rev Ed) (“ROC”). Under that provision, originating summonses were to be heard in chambers, subject to any written law or direction by the court. To justify a departure from the default position that an application initiated by originating summonses was to be heard in chambers, an application seeking an open court hearing had to show special reasons. There was no special reason to depart from the starting position in O 28 r 2 of the ROC. The fact that an issue was of public interest or raised a constitutional point alone did not constitute a special reason to have an open court hearing: at [9], [15], [26] and [27].
(2) The approach to s 17 POFMA applications was set out in The Online Citizen Pte Ltd v AG[2021] 2 SLR 1358, where the Court of Appeal laid out a five-step analytical framework applicable to setting-aside applications under s 17 of POFMA (“the TOC Framework”). The first step of the TOC Framework was to determine the meaning of the subject statement in question and the second step was to interpret the material targeted by a CD to determine whether it contained the subject statement. The third and fourth steps were to determine if the subject statement was a statement of fact and, if so, whether it was false. The fifth step was to determine if the subject statement had been communicated in Singapore and had been accessed in Singapore: at [42].
(3) SDP's argument that the court should determine what Dr Cheong's Statement meant rather than what the Subject Statement meant was incorrect. There was no dispute as to what the Subject Statement meant. It meant that Dr Cheong had said that the population density over the entire land area of Singapore would increase from 11,000 people per square kilometre to 13,700 people per square kilometre between the time of Dr Cheong's Statement to 2030. Given Singapore's land area, Singapore's population would increase to nearly 10 million by 2030: at [46] and [47].
(4) It was also clear that the SDP Article contained the Subject Statement: at [48].
(5) SDP argued that the first sentence of the Subject Statement had clearly stated what Dr Cheong had said because the terms “living density” and “population density” were virtually synonymous. Next, the second sentence in the Subject Statement was SDP's interpretation of Dr Cheong's Statement. It was this deductive process which rendered the Subject Statement an opinion rather than fact. This argument was rejected as the entire Subject Statement purported to be a report of what Dr Cheong had said in the IPS Lecture. Hence, both sentences of the Subject Statement were statements of fact: at [56] and [60].
(6) The Subject Statement was false. It was telling that, in publishing the SDP Article, SDP chose to steer away from a letter by HDB's Director (Strategic Planning), Jaffrey Aw, published in The Straits Times on 24 April 2018 (“Mr Aw's Letter”). Mr Aw's Letter was made in response to Mr Cheang's Forum Letter and essentially clarified the difference between the concepts of population and living density and that living density took into account only the land available for urban areas and excluded land used for ports, airports, defence and utilities, among others. That letter also said that it would be inaccurate to extrapolate the population size from the living density figures. SDP had themselves referred to the Mr Aw's Letter in its application to cancel the 4 July CD, and for this reason (among others), it was not open to SDP's counsel to suggest that SDP might not have been aware of Mr Aw's Letter: at [56] and [67] to [79].
(7) Further, if one were to apply the initial density in Dr Cheong's Statement, ie, 11,000 people per square kilometre to Singapore's total land area of about 720 sq km, this would yield a figure of 7,920,000 persons at the time of the IPS Lecture in 2018. Singapore's population at the time was not even 6.9 million. SDP must have known that the density in Dr Cheong's Statement could not be simply applied over Singapore's total land area. Finally, it was not disputed that the Subject Statement had been communicated in Singapore and had been accessed in Singapore. SDP's appeal was therefore dismissed: at [83], [92] and [93].
(8) On the issue of costs, SDP argued that pursuant to r 15(2) of the POFMA Rules, the default position was that no order on costs should be given unless the application was an abuse of the court's process, or if the conduct of the appeal was done in an extravagant and unnecessary manner. This was not correct. Rule 15(2) of the POFMA Rules had to be read in light of r 15(1), which provided that an appellant that was an individual might not be ordered to pay costs. However, nowhere in the POFMA Rules was it stipulated that the same was to apply for an entity such as SDP in the present case. Costs therefore remained at the usual discretion of the court. SDP was ordered to pay costs to the AG: at [94] to [97].
Chee Siok Chin v AG [2006] 3 SLR(R) 735; [2006] 3 SLR 735, HC (folld)
Chee Siok Chin v AG [2006] 4 SLR(R) 541; [2006] 4 SLR 541, HC (refd)
Chen Cheng v Central Christian Church [1998] 3 SLR(R) 236; [1999] 1 SLR 94 (refd)
Jeyaretnam Joshua Benjamin v AG [1990] 1 SLR(R) 590; [1990] SLR 610 (refd)
Ong Ming Johnson v AG [2020] SGHC 63 (refd)
Online Citizen Pte Ltd, The v AG [2021] 2 SLR 1358 (folld)
Ravi s/o Madasamy v AG [2017] 5 SLR 489 (refd)
Singapore Democratic Party v AG [2020] SGHC 25 (refd)
Wham Kwok Han Jolovan v PP [2021] 1 SLR 476 (refd)
On 3 July 2020, amidst the ongoing national elections at the time, the Singapore Democratic Party (“SDP”) published a Facebook post titled “10 million population” (the “SDP Article”). According to the SDP Article, “the idea of Singapore increasing its population to 10 million did not originate from the SDP”. In support of SDP's position, the SDP Article made the following statement (“the Subject Statement”):
Also, the HDB chief executive [Dr Cheong] said that Singapore's population density would increase from 11,000 people per sq km to 13,700 people per sq km between now and 2030. Given our land area, this means that our population would go up to nearly 10 million by 2030.
Immediately after the above excerpt was a hyperlink referring readers to a letter posted to The Straits Times on 20 April 2018 by Mr Cheang Peng Wah (“Mr Cheang's Forum Letter”), which in turn referred to what Dr Cheong had said in a lecture she delivered on 10 April 2018 in the IPS-Nathan Lecture Series (“the IPS Lecture”). That letter alleged that Dr Cheong had said that Singapore's population density would increase from 11,000 people per square kilometre to 13,700 people per square kilometre in 2030 (“Dr Cheong's Statement”). It queried whether this meant that as Singapore's land area was a mere 720 sq km, its population could go up to nearly 10 million by 2030.
The relevant portion of the written script of the IPS Lecture stated:
3) Deliver Well Managed and Liveable Density
With a growing population, living density in Singapore will increase from 11,000 persons per square kilometre to 13,700 persons per square kilometre between now and 2030. However we need not fear densification if it is done well.
Following the publication of the SDP Article, the Alternate Authority for the Minister of National Development issued a Correction Direction (“CD”) pursuant to s 11 of the Protection from Online Falsehoods and Manipulation Act 2019 (2020 Rev Ed) (“POFMA”) against SDP on 4 July 2020 (“the 4 July CD”). A CD could be issued to a person who communicated a false statement of fact (defined in s 10(1)(a) POFMA as the “subject statement”) in Singapore. In this regard, a CD could require that person to communicate via notice that the identified subject statement was false. Accordingly, the 4 July CD identified the Subject Statement and required SDP to publish a notice which referred readers to a government website laying out the correct facts. The 4 July CD clarified that Dr Cheong had referred to living density and not population density. It further clarified that living density takes into account only the land available for urban areas, and excludes land used for ports, airports and defence, among others. It was therefore inaccurate and misleading to extrapolate a population size of 10 million by 2030 by applying the living density figure to the total area of Singapore.
SDP sought to set aside the 4 July CD...
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