Singapore Democratic Party v Attorney-General

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JCA
• Judgment Date: 25 July 2022
• Neutral Citation: [2022] SGCA 56
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Application No 3 of 2022
• Published date: 29 July 2022
• Year: 2022
• Hearing Date: 07 June 2022
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Suang Wijaya 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)
• Subject Matter: Civil Procedure,Appeals,Permission
• Citation: [2022] SGCA 56

Tay Yong Kwang JCA (delivering the judgment of the court): Introduction

This originating application arises out of the issuance of a Correction Direction (“CD”) to the Singapore Democratic Party (“the SDP”) under the Protection from Online Falsehoods and Manipulation Act 2019 (Act 18 of 2019) (“the POFMA”) in respect of a statement it had published on its Facebook page. The SDP applied unsuccessfully to the relevant Minister to cancel the CD. Thereafter, the SDP appealed to the High Court under s 17 of the POFMA to set aside the CD (“the OS”). The High Court judge (“the Judge”) dismissed the OS in Singapore Democratic Party v Attorney-General [2022] SGHC 100 (“the Judgment”) and declined to set aside the CD. The SDP then filed the present originating application for permission to appeal to this court against the Judge’s decision.

Having considered both parties’ written submissions, we do not think it is necessary to have an oral hearing in court. For the reasons set out in this judgment, we dismiss the SDP’s application for permission to appeal.

The factual background The relevant publications and the CD issued to the SDP

We begin by outlining the relevant publications which form the background to the CD issued to the SDP.

On 10 April 2018, the then-Chief Executive Officer of the Housing & Development Board (“the HDB”), Dr Cheong Koon Hean (“Dr Cheong”), delivered a lecture in the IPS-Nathan Lecture Series (“the IPS Lecture”). The relevant portion of the written script of that lecture stated as follows (“Dr Cheong’s Statement”):¹

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.

On 20 April 2018, a Straits Times forum letter from one Mr Cheang Peng Wah was published (“Mr Cheang’s Forum Letter”). Mr Cheang’s Forum Letter referred to Dr Cheong’s remarks at the IPS Lecture and the relevant portion stated as follows:²

ALARMED BY POPULATION FIGURES

Housing Board chief executive Cheong Koon Hean, 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 size could go up to 9,864,000, or nearly 10 million, by 2030?

…

On 24 April 2018, a letter by Mr Jaffrey Aw – the Director (Strategic Planning) of the HDB – was published in the Straits Times (“Mr Aw’s Letter”). Mr Aw’s Letter read as follows:³

Living density different from population density

We refer to Mr Cheang Peng Wah’s letter (Alarmed by population figures; April 20).

Housing Board chief executive Cheong Koon Hean’s lecture was about how Singapore can anticipate its urban future and develop “liveable density”.

The figures cited were, hence, on living density, and not population density.

Living density takes into account only the land available for urban areas, and excludes land used for ports, airports, defence and utilities, among others.

It would be inaccurate to extrapolate the population size from the living density figure.

[emphasis added]

On 3 July 2020, as part of its campaign in the 2020 Singapore Parliamentary General Elections, the SDP published a press release on its Facebook page titled “10 million population” (“the SDP Article”). The key part of the SDP Article stated:⁴

Also, the HDB chief executive Cheong Koon Hean 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 (http://www.straitstimes.com/forum/excerpts-from-readers-letters).

The hyperlink at the end of that paragraph referred the reader to Mr Cheang’s Forum Letter.

On 4 July 2020, the Alternate Authority for the Minister for National Development (“the Minister”) issued the CD to the SDP pursuant to s 11 of the POFMA. The CD identified the statement in the SDP Article quoted at [7] above (“the Subject Statement”) as a false statement of fact which the SDP was communicating in Singapore and directed the SDP to insert a correction notice in the specified form at the top of the SDP Article by 5 July 2020.⁵

Procedural history

On 17 August 2020, the SDP applied to the Minister to cancel the CD. On 19 August 2020, the Minister refused the application. On 2 September 2020, the SDP filed the OS, seeking to set aside the CD on various grounds under s 17 of the POFMA. In particular, the SDP argued that the Subject Statement was a statement of opinion which was not covered by the POFMA and, in the alternative, that it was not a false statement of fact.⁶ Initially, the SDP also contended that the CD breached Art 14 of the Constitution of the Republic of Singapore (1985 Rev Ed) (see the Judgment at [7]).

At the first hearing of the OS on 11 September 2020, the Judge ordered the matter to be adjourned pending the outcome of two appeals before this court where substantially similar arguments regarding the constitutionality of the POFMA had been made. The Judge also dismissed the SDP’s preliminary oral application for the OS to be heard in open court. The Judge directed that it be heard in chambers.⁷

The judgment in respect of the said pending appeals, The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters [2021] 2 SLR 1358 (“TOC”), was delivered on 8 October 2021. In that judgment, this court upheld the constitutionality of the POFMA and ruled on the applicable burden and standard of proof in applications under s 17 of the POFMA. Consequently, counsel for the SDP indicated that it would not be pursuing its arguments on these points (see the Judgment at [7]). In TOC (at [163]), this court also set out a five-step analytical framework for determining whether a direction made under Part 3 of the POFMA (which includes CDs issued under s 11 of the POFMA) may be set aside under ss 17(5)(a) and/or 17(5)(b) of the POFMA (“the TOC Framework”): First, the court should determine the Minister’s intended meaning in respect of the subject statement that he has identified in the relevant direction. It is the subject statement as understood according to the Minister’s intended meaning that the court is concerned with under the second to fifth steps of the TOC Framework. Second, the court should determine whether the subject material makes or contains the subject statement identified by the Minister. Third, the court should determine whether the identified subject statement is a “statement of fact” as defined in s 2(2)(a) of the POFMA, in the sense that a reasonable person would consider it to be a representation of fact. An objective approach applies in this regard. Fourth, the court should determine (on an objective approach) whether the identified subject statement is “false” in the sense explained in s 2(2)(b) of the POFMA. Fifth, the court should consider whether the identified subject statement has been, or is being, communicated in Singapore.

On 28 March 2022, the Judge heard the OS on its merits.

The Judge’s decision

In his Judgment issued on 10 May 2022, the Judge first set out his reasons for dismissing the SDP’s preliminary application for the OS to be heard in open court. The Judge noted that the default starting position for all originating summonses, as set out in O 28 r 2 of the Rules of Court (2014 Rev Ed) (“the ROC 2014”), was that they should be heard in chambers. The POFMA did not exclude the application of this provision or specify a different starting position for applications under s 17 of the POFMA. The question was therefore whether special reasons existed to warrant an open court hearing. The Judge found that no such reasons existed. Accordingly, the Judge dismissed this preliminary application (see the Judgment at [15], [26] and [27]).

The Judge then applied the TOC Framework to the SDP’s substantive application to set aside the CD under s 17(5) of the POFMA. The Judge’s findings in respect of the first, second and fifth steps of the TOC Framework are not in issue here. For the purposes of this application, the key portions of the Judge’s decision relate to the third and fourth steps of the TOC Framework. At the third step, the Judge found that both sentences of the Subject Statement purported to be a report of Dr Cheong’s Statement and that both were statements of fact (see the Judgment at [60] and [63]). At the fourth step, the Judge held that the Subject Statement was false for two reasons (see the Judgment at [67] and [73]–[83]): First, the SDP had chosen to steer away from Mr Aw’s Letter which made clear that the figures in Dr Cheong’s Statement pertained to living density (which took into account only the land available for urban areas) and not population density. The Judge inferred from the evidence before him that the SDP was aware of Mr Aw’s Letter at all material times and had deliberately substituted “living density” in Dr Cheong’s Statement with “population density” in the SDP Article and applied Dr Cheong’s figures for living density to Singapore’s total land area. Second, the SDP must have known that the density in Dr Cheong’s Statement could not simply be applied over Singapore’s total land area because, on a “back of the envelope” calculation, applying this figure to Singapore’s total land area would yield a figure of 7.92 million persons at the time of the IPS Lecture. At that time, however, Singapore’s population was not even 6.9 million persons.

Accordingly, the Judge dismissed the OS and declined to set aside the CD (see the Judgment at [93]). On 24 May 2022, the SDP filed the present application for...