Singapore Democratic Party v Attorney-General

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 10 May 2022
• Neutral Citation: [2022] SGHC 100
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 856 of 2020
• Published date: 13 May 2022
• Year: 2022
• Hearing Date: 11 September 2020,28 March 2022
• Plaintiff Counsel: Suresh Nair (P K Wong & Nair LLC) (instructed), Eugene Singarajah Thuraisingam and Joel Wong En Jie (Eugene Thuraisingam LLP)
• Defendant Counsel: Tan Ruyan Kristy SC, Pang Ru Xue, Jamie and Beulah Li Sile (Attorney-General's Chambers)
• Citation: [2022] SGHC 100

Woo Bih Li JAD: Introduction

Originating Summons No 856 of 2020 (“OS 856”) is filed by the appellant, Singapore Democratic Party (“SDP”), to set aside a Correction Direction issued by the Alternate Authority on the instruction of the Minister for National Development (“the Minister”) on 4 July 2020 (“the 4 July CD”). A Correction Direction (“CD”) may be issued pursuant to s 11 of the Protection from Online Falsehoods and Manipulation Act 2019 (2020 Rev Ed) (“POFMA”). Section 17(4) of the POFMA empowers the General Division of the High Court to set aside a CD on any of the grounds provided under s 17(5) of the POFMA.

Background

The present appeal arises from SDP’s claim during the 2020 national elections that the government of Singapore had plans, or was “toying with the idea”, of having a population of 10 million people in Singapore.¹ The alleged population target of 10 million was refuted by representatives of the government on multiple platforms.² Among others, it was stated unequivocally that “[t]he Government has never proposed or targeted for Singapore to increase its population to 10 million. And if we look at today’s situation, our population is likely to be significantly below 6.9 million by 2030.”³

On 3 July 2020, SDP published, as part of its election campaign, a press release on its Facebook page entitled “10 million population” (“the SDP Article”). According to the post, “[t]he idea of Singapore increasing its population to 10 million did not originate from the SDP.” In support of this position, the post went on to make the following statement (hereinafter “the Subject Statement”):⁴

Also, the HDB chief executive Cheong Koon Hean [(“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. [emphasis added]

The reference to “the HDB” was to the Housing and Development Board, a statutory authority. Immediately after the Subject Statement was a hyperlink referring readers to a letter from one Mr Cheang Peng Wah to the Straits Times published on 20 April 2018 (“Mr Cheang’s Forum Letter”).⁵ In turn, the letter related that:

Housing Board chief executive [Dr Cheong], in her IPS-Nathan Lecture on April 10 entitled “Anticipating Our Urban Future – Trends, Threats and Transformation”, 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.

This is alarming. As Singapore’s land area is a mere 720 sq km, does this mean that our population could go up to 9,864,000, or nearly 10 million by 2030?

This figure is not the same as that projected in the Population White Paper of 2013 – 6.9 million by 2030.

I hope the authorities can explain this new figure on population density, and assure Singaporeans that everything is being planned to prepare for such an eventuality.”

[emphasis added]

The lecture referred to therein was delivered by Dr Cheong on 10 April 2018 in the IPS-Nathan Lecture Series (“the IPS Lecture”).⁶

Parties had referred to a written script of the IPS Lecture. The relevant portion states:⁷ 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.

After the SDP Article was posted, the Alternate Authority for the Minister appointed during the election issued the 4 July CD. The CD required the SDP to publish a notice informing the reader that the SDP Article “contained a false statement of fact”. Readers of the post were also referred to “the correct facts” on a government website.⁸ According to the government website, the IPS Lecture (which was referenced in the Subject Statement) pertained to:⁹

… [H]ow Singapore can continue to be a highly liveable city should living density in Singapore increase to 13,700 persons per square kilometre by 2030. Dr Cheong referred to living density, which takes into account only the land available for urban areas, and excludes land used for ports, airports, and defence, among others. It is therefore inaccurate and misleading to extrapolate a population size of 10 million by applying the living density figure to the total area of Singapore. [emphasis in original]

The 4 July CD also explained the basis on which the Subject Statement was determined to be a false statement of fact (“the Basis Statement”), which reads as follows:¹⁰

HDB CEO Dr Cheong had referred to living density and not population density in her lecture on 10 April 2018. Living density takes into account only the land available for urban areas, and excludes land used for ports, airports and defence, among others. It is 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.

The Government has not proposed, planned nor targeted for Singapore to increase its population to 10 million.

SDP applied to the Minister on 17 August 2020 to cancel the 4 July CD. This application was rejected by the Minister on 19 August 2020.¹¹ The present appeal was then made to the court to set aside the 4 July CD on various grounds. Two of the grounds were that the Subject Statement was a statement of opinion that was not covered by POFMA, and that, in the alternative, it was not a false statement of fact. In addition, SDP had initially contended that the 4 July CD was unconstitutional as it did not fall within the exceptions to the right to freedom of speech and expression under Art 14(2)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed) (“the Constitution”).¹² In particular, it argued that the definition of “public interest” in s 4 POFMA was unduly broad and thus beyond the ambit of “public order” under Art 14(2)(a) of the Constitution. Further, SDP contended that the burden of proof in a s 17 POFMA application lay with the Minister,¹³ and that the criminal standard of proof applied given the quasi-criminal nature of a CD.¹⁴ As such, their case was that the Minister had failed to discharge this burden. At the hearing of OS 856 on 11 September 2020, I ordered the matter to be adjourned pending CA 47/2020 and CA 52/2020, where substantially similar arguments were made regarding the constitutionality of POFMA before the Court of Appeal (“the CA”) as well as other arguments. Consequently, the CA released The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] 2 SLR 1358 (“TOC v AG”), which upheld the constitutionality of POFMA having applied the test in Wham Kwok Han Jolovan v PP [2021] 1 SLR 476: at [55]–[112]. The CA also ruled on the burden of proof and the standard of proof. Following this, counsel for SDP indicated that it would not be pursuing its arguments on the constitutionality of POFMA, nor any arguments regarding the applicable burden and standard of proof in setting aside applications under s 17 POFMA.¹⁵

Before considering SDP’s remaining arguments proper, I address a preliminary issue that arose for my determination.

Whether the hearing ought to proceed in open court

SDP applied for the hearing of the present appeal, which was initiated by originating summons, to proceed in open court. According to counsel for SDP, Mr Suresh Nair (“Mr Nair”), the starting point for POFMA appeals was rr 11(a) and 11(b) of the Supreme Court of Judicature (Protection from Online Falsehoods and Manipulation) Rules 2019 (“POFMA Rules”), which provides that: 11. The Court hearing an appeal may — (a) give such directions for the hearing of the appeal as the Court thinks fit; (b) conduct the hearing of the appeal in such manner as the Court thinks fit; and

…

According to Mr Nair, this showed that the “POFMA Rules do not provide for any ‘default’ position as to whether the hearing takes place in chambers or in open court”, and “the issue is entirely a matter for decision by the Court, and the legislation does not provide for any predisposition either way”. While O 28 r 2 of the Rules of Court (2014 Rev Ed) (“ROC”) stipulated that “[a]ll originating summonses shall be heard in Chambers”, this was subject to, among other things, “any written law (or) any directions of the Court”.¹⁶

Following his argument that there is no predisposition in favour of a chambers hearing or an open court hearing, Mr Nair submitted that the present appeal was a matter of public interest which leant in favour of an open court hearing because:¹⁷ CDs restrict the constitutional right to freedom of speech; the timelines for appeals against the decision are truncated; an appellant can only appeal against the High Court’s decision with leave of court, such that it is not assured that the arguments will ever be ventilated in open court before the Court of Appeal; the impugned statement was a matter of public interest as it had to do with Singapore’s population; the 4 July CD was issued in the middle of an election campaign; and novel questions of law were being raised in the present appeal, which related to (i) the distinction between statements of fact and opinion for the purposes of POFMA; and (ii) whether POFMA is constitutional. He also submitted that the Deputy Attorney-General, Mr Hri Kumar Nair SC (“the DAG”), had argued in an earlier POFMA appeal that “the public interest threshold will clearly be met in every POFMA direction”.¹⁸

Before dealing with the rest of the arguments, I address the DAG’s comments about the “public interest threshold”. In the earlier POFMA appeal before Ang Cheng Hock J (reported in Singapore Democratic Party v Attorney-General [2020] SGHC 25 (“SDP v AG (Ang CH J)”), Dr Chee Soon Juan (“Dr Chee”),...