Wham Kwok Han Jolovan v Attorney-General and other appeals

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 16 March 2020
• Neutral Citation: [2020] SGCA 16
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Suang Wijaya, Chooi Jing Yen, Johannes Hadi (Eugene Thuraisingam LLP), Choo Zheng Xi and Priscilla Chia (Peter Low & Choo LLC)
• Docket Number: Civil Appeals Nos 99, 108, 109 and 110 of 2019
• Date: 16 March 2020
• Hearing Date: 22 January 2020
• Subject Matter: Contempt of Court,Sentencing,Scandalising the court
• Published date: 19 March 2020
• Defendant Counsel: Mohamed Faizal SC, Senthilkumaran Sabapathy, Ho Jiayun and Seah Ee Wei (Attorney-General's Chambers),Eugene Singarajah Thuraisingam, Suang Wijaya, Chooi Jing Yen and Johannes Hadi (Eugene Thuraisingam LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 16
• Year: 2020

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

These appeals arise out of HC/OS 510/2018 (“OS 510”) and HC/OS 537/2018 (“OS 537”), which were initiated by the Attorney-General (“the AG”) to punish Mr Wham Kwok Han Jolovan (“Wham”) and Mr Tan Liang Joo John (“Tan”) respectively for contempt by scandalising the court (“scandalising contempt”) under s 3(1)(a) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“the AJPA”). The conduct alleged to constitute scandalising contempt pertained to Wham’s and Tan’s posts on their respective Facebook profiles.

The matter first came before a High Court judge (“the Judge”), who dismissed Wham’s and Tan’s challenge to the constitutionality of s 3(1)(a) of the AJPA. Wham and Tan do not appeal against this aspect of the Judge’s decision. The Judge convicted Wham and Tan of scandalising contempt, and sentenced each of them to a fine of $5,000, with one week’s imprisonment in default. The Judge declined to grant the AG’s application for either: (a) an order that Wham and Tan each publish an apology under s 12(3) of the AJPA (an “apology order”); or (b) an injunction requiring Wham and Tan to cease further publication of their posts pursuant to the court’s inherent power read with s 9(d) of the AJPA (a “cease-publication injunction”) (collectively, “the Remedies”). Wham and Tan were also each ordered to pay the AG costs fixed at $5,000, as well as disbursements of $2,297.82 and $1,966.39 respectively. The Judge’s decisions on liability and sentence may be found in Attorney-General v Wham Kwok Han Jolovan and another matter [2018] SGHC 222 (the “Liability Judgment”) and Attorney-General v Wham Kwok Han Jolovan and another matter [2019] SGHC 111 (the “Sentencing Judgment”) respectively.

CA/CA 99/2019 (“CA 99”) is Wham’s appeal against the Judge’s decision on conviction, sentence and costs. CA/CA 108/2019 (“CA 108”) is Tan’s appeal in respect of the same matters in so far as they concern him. CA/CA 109/2019 (“CA 109”) is the AG’s appeal against the Judge’s refusal to grant the Remedies in respect of Wham, and CA/CA 110/2019 (“CA 110”) is the AG’s appeal regarding the same in respect of Tan.

We reserved judgment after the hearing on 22 January 2020, and now deliver the same dismissing Wham’s and Tan’s appeals in CA 99 and CA 108, dismissing the AG’s appeal in CA 110, and allowing in part the AG’s appeal in CA 109.

As Wham and Tan are the first persons to be prosecuted under s 3(1)(a) of the AJPA, we take the opportunity in this judgment to address a number of points pertaining to how certain aspects of the AJPA are to be understood and applied. Before turning to that, we begin with the facts.

The facts

On 27 April 2018 at around 6.30pm, Wham published a post on his Facebook profile (“Wham’s post”) containing the following statement:

Malaysia’s judges are more independent than Singapore’s for cases with political implications. Will be interesting to see what happens to this challenge.

Wham’s post also included a link to an online article titled “Malaysiakini mounts constitutional challenge against Anti-Fake News Act”. Wham published his post under the “Public” setting of Facebook’s audience selector. According to information on Facebook’s online Help Centre, sharing a post under this setting means that “anyone including people off of Facebook can see it”.

On 30 April 2018, the AG filed OS 510 seeking leave to apply for an order of committal against Wham for scandalising contempt under s 3(1)(a) of the AJPA.

On 6 May 2018 at around 11.05am, Tan published a post on his Facebook profile (“Tan’s post”) containing the following statement:

By charging Jolovan for scandalising the judiciary, the AGC only confirms what he said was true. [underlining in original]

Tan’s reference to “what [Wham] said” was a reference to what Wham had said in his post. Tan’s post also contained a link to Wham’s Facebook profile. Like Wham, Tan published his post under the “Public” setting of Facebook’s audience selector.

On 7 May 2018, the AG filed OS 537 seeking leave to apply for an order of committal against Tan for scandalising contempt under s 3(1)(a) of the AJPA.

On 9 May 2018, the Judge granted both applications for leave. On 10 May 2018, Wham published the following post on his Facebook profile (Wham’s “10 May 2018 post”):

I received a letter today from the Attorney General’s Chambers confirming that leave has been granted by the High Court to prosecute me for making the following remarks on Facebook:

“Malaysia’s judges are more independent than Singapore’s for cases with political implications. It will be interesting to see what happens to this challenge.”

The AGC said I had “scandalised the court”[.]

My comment was made in response to the news that Malaysiakini had filed a constitutional challenge to declare that Malaysia’s fake news law was a violation of the right to freedom of expression.

I said it based on several Malaysian cases I had read in which the courts upheld basic rights to freedom of expression and assembly and overturned several government decisions. It was also based on my reading of Francis Seow’s book: Beyond Suspicion? The Singapore Judiciary, published by Yale University’s Council on Southeast Asian Studies. Seow was not prosecuted by the government for publishing it.

…

On 11 May 2018, the AG filed HC/SUM 2196/2018 (in OS 510) and HC/SUM 2192/2018 (in OS 537) for Wham and Tan respectively to be punished for scandalising contempt. The Judge heard these summonses on 17 July 2018.

On 8 October 2018, Wham published the following post on his Facebook profile (Wham’s “8 October 2018 post”):

Update: Justice Woo Bih Lih [sic] will deliver his judgment tomorrow at 10am in High Court Room 5C. I will be there with my lawyers …

In May this year, I was accused of ‘scandalising the judiciary’ for making the following statement: ‘Malaysian judges are more independent than Singapore’s for cases with political implications. Will be interesting to see what happens to this challenge’. The case I was referring to was Malaysiakini’s high court challenge to declare Malaysia:s [sic] new fake news law unconstitutional.

I said this based on several cases I had read in the media and in journal articles in which the Malaysian courts had upheld the constitutional rights of its citizens in relation to their civil and political liberties, whereas similar challenges in Singapore failed. My views were also formed by the late Francis Seow’s indictment of the judiciary in his book “Beyond Suspicion? The Singapore Judiciary”[.]

…

Wham and Tan were convicted of scandalising contempt on 9 October 2018. On the same day, Wham published the following post on his Facebook profile (Wham’s “9 October 2018 post”):

Justice Woo Bih Lih [sic] has found me and John L. Tan guilty of scandalising the judiciary. Separate hearing for sentencing will be scheduled. The offending statement I made was ‘Malaysian judges are more independent that Singapore’s for cases with political implications. Will be interesting to see what happens to this challenge’. [emphasis in bold in original]

The Judge heard the parties on sentencing and costs on 20 March 2019. At that hearing, Tan indicated that he would not be apologising for his post but would remove it. He took down his post on 21 March 2019. In contrast, Wham did not take down his post (see [17] below). Wham and Tan were sentenced by the Judge on 29 April 2019. The parties then filed their respective appeals.

On 8 January 2020, Wham published the following post on his Facebook profile (Wham’s “8 January 2020 post”):

A 5 judge panel at the Court of Appeal will preside over my offence of ‘scandalising the judiciary’ on 22 January Wednesday, 10am on the 9th floor of the Supreme Court. This is the final appeal.

In April last year, I had said ‘Malaysian judges are more independent than Singapore’s for cases with political implications. Will be interesting to see the outcome of this case’. The ‘case’ I was referring to was Malaysiakini’s announcement that it would be filing a court challenge against a proposed ‘anti fake news law’ enacted under the BN [Barisan Nasional] government.

Singapore Democratic Party’s John Tan was similarly convicted for posting on Facebook that the AGC’s decision to charge me proved that what I said was true.

In the lead up to the hearing at the end of the month, I will be sharing a little on the history of the law I’ve been convicted under, the legal arguments that have been put forth, and why this law is unconstitutional. Watch this space! #contemptOfCourt #FreedomOfExpression

On 20 January 2020, two days before the hearing of the present appeals, Wham published a further post on his Facebook profile (Wham’s “20 January 2020 post”) as follows:

Court hearing on 22 January, Wednesday 10am at Supreme Court, level 9.

Scandalising the judiciary:

In a 2018 interview, PM Lee said that Singaporeans were “free to say or publish whatever they wanted, subject to the laws of sedition, libel and contempt.”

But the way these laws are applied violate not only our constitutional rights but international free speech standards.

…

What I have been hauled up to court for was … a two sentence [Facebook] post which asserted that Malaysian judges are more independent than the ones in Singapore for cases with political implications.

… My criticisms were temperate and moderate; I did not allege that our judges were corrupt, incompetent, or lacked independence.

…

International case law sets the standards of free speech as that which does not incite violence, discrimination, and hate. Other jurisdictions which still have contempt of court convict those who make harsh and insulting attacks

My post can hardly be said to have breached those standards. It attracted fewer than 20 likes and was shared by only one person. What kind of damage...