Xu Yuan Chen (alias Terry Xu) v Attorney-General

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA
• Judgment Date: 25 August 2022
• Neutral Citation: [2022] SGCA 59
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 68 of 2021
• Published date: 30 August 2022
• Year: 2022
• Hearing Date: 28 June 2022
• Plaintiff Counsel: Lim Tean (Carson Law Chambers)
• Defendant Counsel: Tan Ruyan Kristy SC, Sarah Siaw Ming Hui and Jean Goh (Attorney-General's Chambers)
• Subject Matter: Constitutional Law,Attorney-General,Prosecutorial discretion,Equality before the law,Article 12(1) of the Constitution of the Republic of Singapore,Judicial review,Leave to commence judicial review proceedings
• Citation: [2022] SGCA 59

Steven Chong JCA (delivering the judgment of the court): Introduction

Article 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) provides that “[a]ll persons are equal before the law and entitled to the equal protection of the law”. This broadly framed constitutional right to equality before the law does not, however, entitle all persons to equal treatment regardless of the facts and circumstances of each case. As this court recently explained in Attorney-General v Datchinamurthy a/l Kataiah [2022] SGCA 46 (“Datchinamurthy”) at [29], the concept of equality under Art 12(1) does not mean that all persons are to be treated equally, but simply that all persons in like situations will be treated alike. In line with this understanding of the right to equality, a two-step test has been developed in our local jurisprudence to determine whether executive action breaches Art 12(1), the first step of which requires the party alleging a breach of Art 12(1) to show that he has been treated differently from other equally situated persons (Syed Suhail bin Syed Zin v Attorney-General [2021] 1 SLR 809 (“Syed Suhail”) at [61]–[62]). Thus, while it is not necessary for an applicant who alleges a breach of Art 12(1) to establish “deliberate and arbitrary discrimination” (see Syed Suhail at [57]–[61]), it is nevertheless essential for the applicant to be able to point to a relevant and appropriate comparator who is equally situated, and whose treatment can therefore be meaningfully compared with his or her own.

At the heart of the present appeal is the application of Art 12(1) in the specific context of the exercise of prosecutorial discretion by the Attorney-General (“the AG”). This is the first post-Syed Suhail case before this court where this particular question has been squarely raised. We therefore take the opportunity to set out the law on how the two-step test in Syed Suhail should apply in such cases.

Facts The parties involved and the relevant publications

The appellant, Mr Xu Yuan Chen, is the Chief Editor of The Online Citizen (“TOC”), a news media platform.

On 27 January 2021, a letter titled “Concerning Omissions – Open Letter to Singapore’s Chief Justice” (“the Letter”) was published by one Ms Julie Mary O’Connor (“Ms O’Connor”) on her blog, www.bankingonthetruth.com (“BOTT”). Ms O’Connor is an Australian citizen who presently resides in Australia. On the same day, the appellant – having read the Letter and judged that it merited republication by TOC – sent Ms O’Connor a message on Facebook asking if he could repost the Letter, and she agreed.

Later that day (27 January 2021), the appellant published an article comprising the Letter with only stylistic edits (“the Article”) on TOC’s website, www.theonlinecitizen.com (“TOC’s Website”). At the end of the Letter was a hyperlink to the Letter on BOTT. In addition, the appellant published a post on TOC’s Facebook page, “The Online Citizen Asia” (“TOC’s Facebook Page”), which shared the Article and reproduced an excerpt therefrom (“the Facebook Post”). The appellant confirmed in his statement to the police that it was he who had published the Article on TOC’s Website, and although he said he had “[n]o recollection” of who had published the Facebook Post, he had also stated that he was “the only person who ha[d] the authority to decide” what to publish on TOC’s Website and TOC’s Facebook Page.

On 29 January 2021, the Deputy Attorney-General declared that there were reasonable grounds to suspect that contempt of court under s 3(1)(a) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“the AJPA”) had been committed by the publishing of the Letter, the Article and the Facebook Post, and that it was in the public interest to investigate the alleged contempt. Following investigations, the Attorney-General’s Chambers (“the AGC”) was satisfied that “the contents of the Letter, and by extension the Article and the Facebook Post”, amounted to contempt of court under s 3(1)(a) of the AJPA. On 22 June 2021, the AGC wrote to the appellant inviting him to withdraw his remarks (including by deleting and removing the Article and the Facebook Post) and to apologise to the Judiciary. However, the AGC did not send a similar letter to Ms O’Connor.

The appellant’s solicitors responded on 29 June 2021, rejecting the AGC’s allegations of contempt and asking why the AGC had not taken any steps to pursue Ms O’Connor for contempt. To date, the appellant has not taken the steps which the AGC invited him to take in its letter of 22 June 2021.

Commencement of contempt proceedings against the appellant

On 8 July 2021, the AG commenced HC/OS 694/2021, seeking leave to apply for an order of committal against the appellant for contempt of court in connection with his intentional publication of the Article and the Facebook Post, and his deliberate refusal to delete the same despite the AGC’s demand that he do so. Such leave was granted by the General Division of the High Court (“the High Court”) on 6 August 2021. Subsequently, on 11 August 2021, the AG filed HC/SUM 3816/2021 for an order of committal against the appellant and for an order for the appellant to delete the Article and the Facebook Post from TOC’s Website and TOC’s Facebook Page respectively, and to cease further publication of the same (“the Committal Application”).

Application for leave to commence judicial review proceedings

On 8 September 2021, the appellant filed HC/OS 917/2021 (“OS 917”), seeking leave to apply for prohibiting orders preventing the AG from proceeding with the Committal Application (“the Prohibiting Orders”), as well as declarations that the Committal Application was in breach of Arts 12(1), 12(2) and 35(8) of the Constitution (“the Declarations”).

Decision below

The High Court judge below (“the Judge”) dismissed OS 917 on 25 November 2021 and issued her full grounds of decision in Re Xu Yuan Chen (alias Terry Xu) [2021] SGHC 294 (“the GD”) on 30 December 2021. The Judge found that the appellant had not shown a prima facie breach of Art 12(1) of the Constitution. The relevant comparator was Ms O’Connor, and the appellant was not prima facie equally situated with Ms O’Connor. In this regard, the Judge accepted the AG’s arguments that, by way of illustration, there were at least three material differences between the appellant and Ms O’Connor, namely: the degree of harm caused; the level of culpability involved; and the ease of investigation, prosecution and enforcement. These differentiating factors were legitimate considerations for the AG, and were not undermined by Ms O’Connor’s admission of responsibility for the authorship of the Letter (see the GD at [27]–[38]).

As for the appellant’s other claims and prayers for relief, the Judge found that these had effectively fallen away, and consequently did not consider these further. The appellant’s claims of illegality and irrationality, which were premised on the same matters as those set out above, fell away in light of the finding that the appellant had not made out the alleged breach of his Art 12(1) right (see the GD at [39]). Further, the Judge noted that the appellant had “indicated that [the] ground concerning [the] alleged breach of Art 12(2) of the Constitution [would] not be relied on” (see the GD at [13]). As for the alleged breach of Art 35(8) of the Constitution, the Judge observed that on either the unlawfulness and irrationality ground or the Art 12(1) ground, it was the appellant’s case that the AG had improperly exercised the prosecutorial power and discretion conferred on him by Art 35(8) (see the GD at [11]).

On 8 December 2021, the appellant filed the present appeal against the Judge’s decision.

The parties’ cases The appellant’s case

The appellant initially sought to challenge the AG’s decision to file the Committal Application against him on four related grounds. First, the appellant argued that the Committal Application was “both unlawful and irrational” because the AG had “singled [him] out” for committal for contempt of court when he had only republished the Letter without embellishment, and the AG had not pursued any action against Ms O’Connor (as the author and original publisher of the allegedly contemptuous Letter) even though she had “offered herself for investigation and/or prosecution”. Second, the appellant argued that the Committal Application was in breach of Art 12(1) of the Constitution because it “violate[d] his constitutional guarantee of equal treatment under the law”. Third, the appellant argued that the Committal Application was in breach of Art 12(2) of the Constitution because it “discriminated against [him] … because of [his] position as a journalist and Chief Editor of TOC”. Fourth, the appellant argued that the Committal Application was in breach of Art 35(8) of the Constitution because the AG had acted unlawfully and/or irrationally and in breach of Art 12(1) in exercising his prosecutorial discretion to bring this application.

The appellant is, however, no longer pursuing his arguments on illegality and/or irrationality or on Art 12(2) on appeal. Indeed, his prayer for a declaration that there had been a breach of Art 12(2) was expressly abandoned by his counsel, Mr Lim Tean (“Mr Lim”), at the hearing before the Judge. In our view, the appellant’s decision not to pursue these points further was rightly made. As explained in Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26 at [102(d)], Article 12(2) prohibits only specific grounds of discrimination, namely: “discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth” [emphasis added]. The appellant has not sought to argue that any of the four specific grounds of discrimination listed in Art 12(2) applies in the present case;...