Rationale for law of contempt of court

Justice Quentin Loh revisited the rationale for the law of scandalising the court. He examined cases from other jurisdictions to outline the raison d'être of the offence, including Attorney General v. Times Newspapers Ltd. (1973)^[10] by the House of Lords of the United Kingdom, Solicitor-General v. Radio Avon Ltd. (1977)^[11] by the Court of Appeal of New Zealand, Gallagher v. Durack (1983)^[12] by the High Court of Australia, and Secretary for Justice v. Oriental Press Group Ltd. (1998)^[13] by the Court of First Instance of Hong Kong. These cases identified the protection of public confidence in the administration of justice as the aim of the offence of scandalising contempt.^[14]

Justice Loh, referring to Judge of Appeal Andrew Phang Boon Leong's dicta in Pertamina Energy Trading Ltd. v. Karaha Bodas Co. LLC (2007),^[15] also clarified that the aim of the law of contempt of court is not to protect the dignity of judges. Rather, he emphasised the symbiotic relationship between the courts and the public – the public relies on the courts to administer justice, and the courts rely on the public for confidence in them. He hinted that the court's role in maintaining such public confidence was imputed in the common law, holding that "[i]t is ... an axiom of the common law that justice should not only be done, but should manifestly and undoubtedly be seen to be done".^[16] He also recognised that a balance must be struck between "ensuring that public confidence does not falter as a result of such attacks" and not "unduly restricting public discussion on the administration of justice".^[17]

Rejection of the inherent tendency test

The prevailing position in Singapore for liability for scandalising contempt prior to Shadrake was the inherent tendency test. This test required an evaluation of whether the comments made had "the inherent tendency to interfere with the administration of justice",^[18] which had to be proved beyond reasonable doubt. The test, first articulated in Attorney-General v. Wain (1991),^[18] was affirmed in Attorney-General v. Hertzberg (2009).^[19] There was no requirement to prove intent on the respondent's part to interfere with the administration of justice under this test. Intent was only a consideration at the sentencing stage.^[20]

The inherent tendency test theoretically has a lower threshold than the real risk test, thereby causing persons who are charged with scandalising contempt to be convicted for the offence with greater ease. In Shadrake, Justice Loh identified two problems with the inherent tendency test as it had been set out in Wain. First, the High Court had said that the justification for scandalising contempt was the prevention of interference with the administration of justice as opposed to protecting public confidence in the administration of justice. The former is the concern of sub judice contempt – that is, contempt relating to a case that is currently under consideration by a court – while it is the latter that is concerned with scandalising contempt. Secondly, such a test indicates that the words in the impugned publication or speech are to be looked at alone. This has the effect of ignoring the circumstances surrounding the utterance or publication of the words, and is excessively harsh.^[21]

Adoption of the real risk test

The High Court examined the law in various Commonwealth jurisdictions, noting that the test used for determining whether a person is guilty of scandalising contempt is the real risk test. Under this test, the threshold for liability is "a real risk, as opposed to a remote possibility".^[22] The Court also noted reservations that the Hong Kong Court of First Instance had brought up in implementing the real risk test. First, the test should be given its ordinary meaning – a real risk does not mean that it is more probable than not to occur, but instead means "a good chance as opposed to a mere possibility". Secondly, the impugned words must relate "to the section of the public whose confidence in the administration of justice must be affected".^[23]

Justice Loh recognised that the difference between the inherent tendency and real risk tests is not a matter of semantics. He opined that the inherent tendency formula is contentious because the literal meaning of inherent tendency would "obscure the fact that a contextual analysis is actually required." To unambiguously exclude statements which lack the potential effect of reducing public confidence in the administration of justice, Justice Loh thus adopted the real risk test, thus departing from the inherent tendency test used in earlier Singapore cases.^[24] He also emphasised several aspects of the test:^[25]

• A real risk is "something more than a de minimis, remote or fanciful risk. It must have substance, but need not be substantial."^[26] Thus, a small likelihood would also be considered a real risk.
• Whether a real risk to confidence in the administration of justice was posed is a question of fact to be determined objectively, taking all the circumstances of the case into consideration. This includes factors such as the person making the statement, the nature of the statement itself, how widely it has been published, and "local conditions" such as the size of Singapore and the multiracial and multi-religious make-up of its populace. Local conditions may also mean that since those who come into contact with the impugned publication or words may not be objective reasonable persons, the court must be open to take reference from such affected groups, instead of the objective reasonable man. In addition, the Court also stated that the fact that judges are the sole arbiters of fact and law must also be taken into account when assessing the impugned statement.
• The focus of the real risk test is whether there is a real risk to public confidence in the administration of justice, and neither the effect on the judge hearing the application for committal, nor whether a judge is personally offended by the publication. The requirement for such a real risk, "while very wide, is not illusory". Here, Justice Loh referred to a hypothetical situation mentioned in Hertzberg^[19] and opined as follows: "[I]f rants made at a dinner party are shown to have been ignored, I cannot see that they would pose a real risk to public confidence in the administration of justice".^[27]

Defences

Fair criticism was singled out as the only applicable defence available in the law of contempt.^[28] As the defamation defences of justification and fair comment were viewed as inappropriate in protecting the court from attacks, the High Court declined to recognise them as valid defences to scandalising contempt.^[29] Adopting the reasoning in Attorney-General v. Chee Soon Juan,^[30] the Court held that the defences of justification and fair comment in the law of defamation were not available in the law of contempt because of the overriding interest in protecting the public's confidence in the administration of justice, particularly when accusations against a judge's impartiality are mounted. Allowing the defence of fair comment would expose the courts to any belief published in good faith and not for an ulterior motive, even though it may be unreasonable. Similarly, the defence of justification would give malicious parties an added opportunity to subject the dignity of the courts to more attacks.^[31] The Court also noted that in Hertzberg, the purposes of contempt and defamation law were distinguished: "the law of contempt ... is concerned with the protection of the administration of justice and is grounded in public interest, while the law of defamation is concerned with the protection of a private individual's reputation".^[32]

The Court affirmed and elaborated on the view in Tan Liang Joo John,^[20] accepting that fair criticism does not amount to contempt of court. The burden of proof lies with the defendant to show that he was acting within his right of fair criticism.^[33] The elements of the defence are as follows:^[34]

• There should be some objective basis for the allegation made and it must be stated together with the criticism so that the readers may be able to evaluate the merits of the allegations. Proof to support the criticism is not necessary, merely some rational basis for it would be sufficient.
• The person must genuinely believe in the truth of the criticism made in good faith, which necessitates that the person must know the factual basis for his criticism before the allegation is made.
• While outspoken language is acceptable, abusive, intemperate or outrageous language is not. The requirement for respectfulness must be balanced by the fact that "the law in this area applies to everyone and not just those who are bound by the rules of court decorum. ... [I]t would not be reasonable to expect every person to adopt the refined language of scholarly discourse or court address."^[35]
• There is no limit to the kind of criticism which can be made against the court, subject to the above three criteria being met. People who genuinely believe that the court is partial and corrupt and have a rational basis for this belief should be able to say so without fear of being held in contempt. There is a powerful public interest that has been applied time and again in Singapore of exposing and rooting out impropriety and corruption on the part of those who hold public office, wherever or whoever they may be.

High Court's ruling on the impugned statements

The High Court individually examined the 14 statements impugned by the Attorney-General to determine whether some or all of them, contextually considered, posed a real risk to public confidence in the administration of justice. It also considered whether the statements were made with rational bases and/or in good faith so as to entitle Shadrake to claim fair criticism. In the end, the Court found that three of the statements were not contemptuous as they did not unambiguously refer to the courts. However, the remaining 11 statements were found to be in contempt as they had a real risk of reducing public confidence in the administration of justice in Singapore. Justice Loh put it thus:^[36][37]

Given that the book is or was available publicly, and continues to be circulated, there is certainly more than a remote possibility that, if the matter had been left unchecked, some members of the public might have believed Mr Shadrake's claims, and in so doing would have lost confidence in the administration of justice in Singapore.

The Court held that Shadrake could not rely on the defence of fair criticism as the statements were published "without any rational basis, or with reckless disregard as to their truth or falsehood ... [and] do not fall to be protected by the defence of fair criticism".^[38]

In a postscript, Justice Loh affirmed that the judiciary's interest is not in stifling public debate on matters of public interest which includes the conduct of judges. In fact, they are obliged to protect the freedom of speech guaranteed to citizens. Nevertheless, he held that there are limits on such debate in order to ensure that public confidence in the administration of justice is upheld.^[39]

Principle behind contempt of court and constitutional considerations

The Court of Appeal's judgment was rendered on 27 May 2011 by Judge of Appeal Andrew Phang. Affirming the High Court's decision, the Court of Appeal held that the purpose of the law on scandalising contempt was to prevent erosion public confidence in the administration of justice, not the protection of the dignity of judges. The Court further affirmed that scandalising contempt was a public injury and not a private tort.^[48]

The Court also observed that the law on contempt of court operated against the broader legal canvas of the right to freedom of speech that is embodied within Article 14 of the Constitution as well as the common law. There is a need for balance: while the right to freedom of speech is not absolute, the law on contempt of court should also not unduly infringe the right.^[49]

Test for liability

The Court of Appeal affirmed that the mens rea or mental element for liability was the intentional publication of the allegedly contemptuous statement.^[50] The Court then focused on the actus reus of the offence, and considered the legal principles for identifying the suitable test for liability for scandalising contempt. In particular, the Court detailed the contents of the real risk test, the clear and present danger test, and the inherent tendency test. It held that the real risk test was the applicable test for scandalising contempt in Singapore.^[51]

Fair criticism

The Court of Appeal stated that case law was ambiguous as to whether the concept of fair criticism was a separate defence or an issue of liability forming an integral part of the process of analysis. In elaboration, the Court undertook an extensive survey of the Commonwealth case law,^[62] treatises on the law of contempt,^[63] the reports of various law commissions and committees,^[64] and legislation.^[65][66]

The Court of Appeal recognised that the approach adopted towards fair criticism has a practical implication on the evidential burden. If fair criticism goes towards liability, the burden would be on the party alleging the contempt to prove beyond reasonable doubt that the statement is not fair criticism and poses a real risk of undermining public confidence in the administration of justice. Conversely, if fair criticism is a defence to an allegation of contempt, the burden would be on the alleged contemnor to show on a balance of probabilities that the statement amounts to fair criticism.^[67]

Given the ambiguity in the legal sources and the policy decision involved, the Court took the view that Parliament would be in a better position to create a defence to contempt of court. Until Parliament did so, however, it was for the court to determine the operation of fair criticism at common law. On this point, the Court held that the concept of fair criticism should go towards liability. Due to the quasi-criminal nature of scandalising contempt, the alleged contemnor should not be disadvantaged by having the evidential burden placed on him or her. The Court of Appeal concluded with a caveat that the approach adopted was only provisional in nature, since the characterisation of fair criticism was not fully canvassed before it.^[68] Chan has said that requiring the Prosecution to prove the absence of fair criticism is to be "commended for enhancing the protection of the alleged contemnor’s right of free speech".^[54]

In approaching the concept of fair criticism going towards liability for contempt of court, the Court of Appeal held that the various non-exhaustive factors set out in Tan Liang Joo John were helpful in deciding whether the contemnor was liable for scandalising contempt. These factors include:^[69]

• The extent to which the allegedly fair criticism is supported by argument and evidence.
• The manner in which the alleged criticism is made.
• The party's attitude towards the court.
• The number of instances of contemning conduct.

In addition, the court ought to bear in mind the following key question: does the impugned statement constitute fair criticism, or does it cross the legal line by posing a real risk of undermining public confidence in the administration of justice?^[70]

The view has been taken that it may be rather burdensome for the Prosecution to have to prove the alleged contemnor was unaware of any rational basis for the criticism. Furthermore, although the Court did not mention this, since the effect of a statement has to be judged from an average reasonable person's point of view, perhaps the rational basis for the criticism should be apparent to the person in some manner. For example, there could be a requirement that the statement expressly mention the basis, or that it is possible to imply the basis from the statement. The basis might also be discernible from external sources such as media reports, so long as this is clear to an average reasonable person.^[71]

Further, the Court of Appeal rejected two arguments raised by the Prosecution circumscribing the scope of fair criticism. In the first place, the Court found that fair criticism should not be limited to criticism that does not question the independence, impartiality and integrity of courts. This would overly restrict the scope of fair criticism and render the concept redundant, given that most allegedly contemptuous statements, by their nature, call into question the independence, impartiality and integrity of the courts. Furthermore, Commonwealth courts have previously held that imputation of judicial impropriety is not ipso facto scandalising contempt.^[72]

Next, the Court found that fair criticism should not be limited to criticism raised through formal legal avenues, which include court proceedings and the removal of judges under Article 98(3) of the Constitution. This limitation overburdens the right of free speech, and a person should not be prevented from raising rationally supported criticism simply because he or she does not have access to formal avenues.^[73]

Court of Appeal's ruling on the impugned statements

The Court of Appeal applied the principles of law enunciated above to the 11 statements that were found to be contemptuous by the High Court. The Court held that "the statements should be read as statements emanating from a person who has held himself out as an investigative journalist and the actual or potential effect of the statements on the public should be assessed accordingly."^[74]

The Court of Appeal differed from the High Court in holding that nine of the 11 statements were contemptuous.^[75] It found that there was a real risk that these statements would undermine public confidence in the administration of justice as they suggested that the judiciary was influenced by considerations relating to politics, international trade and business;^[76] favoured wealthy and privileged people;^[77] and was compliant to instructions issued by the Government.^[78]

Three statements referred to the case of Vignes Mourthi,^[79] who had been convicted of drug trafficking and sentenced to death. Shadrake had drawn attention to the fact that one Sergeant Rajkumar from the Central Narcotics Bureau was under investigation for offences under the Prevention of Corruption Act^[80] at around the time he was giving evidence in Mourthi's case. Shadrake then stated that the high echelons of the judiciary knew about Rajkumar's misdeeds but deliberately suppressed knowledge of them until after Mourthi had been executed.^[81] There was no rational basis for these statements. Shadrake claimed that the judiciary would have known of the proceedings against Rajkumar because members of the subordinate judiciary, who deal with 95% of the cases in Singapore, and prosecutors, are both drawn from the Singapore Legal Service. Furthermore, some judges of the Supreme Court were elevated from the Subordinate Courts and had served stints in the Attorney-General's Chambers. The Court of Appeal agreed with the High Court's findings that this was too incredible and attenuated to form a rational basis for the claim.^[82]

The Court of Appeal found that the two remaining statements were not contemptuous of the courts. One of the statements could be construed as claiming that the Government, acting through the Prosecution, had chosen to bring reduced charges against a German national for fear of economic reprisals by the German government.^[83] The other statement was possibly directed at the People's Action Party, the ruling party of Singapore.^[84]

Sentence

The Court of Appeal stated that sentencing is neither an exact science nor an exercise of raw discretion. Sentencing is based on a set of guidelines that should not be applied rigidly as if they are "writ in jurisprudential stone". Instead, it should always depend on the precise facts and context concerned.^[85] To illustrate, the Court stated some of the sentencing guidelines enunciated in preceding cases, which include the following:^[86][87]

• The culpability of the contemnor, and the nature and gravity of the contempt.^[88]
• The seriousness of the occasion on which the contempt was committed.^[88]
• The number of contemptuous statements made.^[89][90]
• The type of contemptuous statements and how widely they were disseminated.^[88]
• How important it is to deter other people from acting in the same way.^[88]
• Whether the contemnor has committed similar offences in the past.^[90]
• Any remorse shown by the contemnor, for instance, in the form of a sincere apology.^[90][91]

The Court also held recognised that imprisonment should not be regarded as the starting point for sentences for scandalising contempt. The punishment imposed depends on the facts and the context of the case.^[92]

On the facts of the case, the Court stated that although it had only found nine statements made by Shadrake to be contemptuous, these statements constituted serious acts of scandalising contempt. Furthermore, the extent and mode of publication and distribution aggravated the harm. The Court noted the admission by Shadrake's counsel that nearly 6,000 copies had been sold in Singapore and abroad due to heightened curiosity about the book during the trial. The medium of publication – a book – was also more permanent, compared to past cases which had involved articles in journals or magazines. This increased the risk of damage to public confidence in the administration of justice.^[93]

Conversely, there were no mitigating factors in Shadrake's favour. The Court of Appeal stated that Shadrake had not shown any remorse, but had continued to stand by the statements he made. Following the High Court's ruling on liability but before it had sentenced him, Shadrake had also given an interview to the UK newspaper The Guardian, in which he described his book as "devastatingly accurate" and declared that "[t]his story is never going away. I'll keep it on the boil for as long as I live. They're going to regret they ever started this."^[94] Furthermore, Shadrake had expressed an intention to produce a second edition of the book.^[95]

The Court of Appeal also disagreed with the High Court's approach of granting Shadrake an unquantified discount should be given in order to prevent stifling legitimate debate on the death penalty and other areas of law. The Court of Appeal maintained that such debate had always been open to all and would continue to be so, but such debate must not go overboard and constitute scandalising contempt. It affirmed the High Court's sentence of six weeks' imprisonment and a fine of $20,000, with an additional jail term of two weeks to run consecutively with the six-week term if the fine was not paid.^[87][96]