Lessons from the First Case Under the Administration of Justice (Protection) Act 2016
In Wham Kwok Han Jolovan v Attorney-General and other appeals,1(2020) SGCA 16 (‘Jolovan Wham’). a judgment delivered on 16 March 2020, the Court of Appeal (CA) set out the parameters for liability for scandalising contempt under section 3(1)(a) of the Administration of Justice (Protection) Act 2016 (AJPA). The CA also took the opportunity to clarify the scope of remedies available under the AJPA. The AJPA was passed in 2016, and statutorily consolidated the law on contempt of court. Jolovan Wham was the first prosecution under the AJPA to be heard before the apex Court.
In Jolovan Wham, the Attorney-General (AG) had commenced proceedings against Mr Wham Kwok Han Jolovan (Wham) and Mr Tan Liang Joo John (Tan) for contempt by scandalising the court (scandalising contempt) under section 3(1)(a) of the AJPA.
Wham, a social activist, had published a public Facebook post on 27 April 2018 containing the following statements:
“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 contained a link to an online article titled “Malaysiakini mounts constitutional challenge against Anti-Fake News Act”.2Jolovan Wham at (6).
Tan, a political party member who had previously stood for elections under the Singapore Democratic Party ticket, subsequently published a public Facebook post on 6 May 2018 containing the following statement:
“By charging Jolovan for scandalising the Judiciary, the AGC only confirms what he said was true” [underlining in original].
The High Court Judge convicted Wham and Tan of scandalising contempt under the AJPA and sentenced each of them to a $5,000 fine, with one week’s imprisonment in default.
In his grounds, the Judge refused the AG’s application for the following remedies:
- that Wham and Tan to publish an apology under section 12(3) of AJPA;
- an injunction for Wham and Tan to cease further publication of their posts pursuant to the court’s inherent power read with section 9(d) of the AJPA (the Remedies).
Wham and Tan appealed both conviction and sentence. The AG appealed against the Judge’s refusal to grant the Remedies in respect of Wham and Tan.
On appeal, the CA dismissed Wham and Tan’s appeals in respect of liability and sentence and permitted, in part, the AG’s cross-appeal and granted the AG a cease-publication injunction for Wham to take down his post and desist from future publication of that post.
The CA’s Decision
1. Liability for Scandalising Contempt
The CA’s decision provides important delineation of what constitutes a “risk” under section 3(1)(a)(ii) of the APJA. Section 3(1)(a) of the AJPA provides that any person who scandalises the court by intentionally publishing any matter or doing any act that –
- imputes improper motives to or impugns the integrity, propriety, or impartiality of any court; (the first limb) and
- poses a risk that public confidence in the administration of justice would be undermined (the second limb).
The first limb was not meaningfully disputed on appeal, so the focus of counsel’s arguments on appeal related to the second limb.
As may be recalled, the question of the sufficiency of “risk” generated significant debate when the AJPA was introduced in Parliament in 2016, as it statutorily departs from the common law position that the threshold for scandalising contempt had to pose a “real risk” that public confidence in the administration of justice would be undermined. Prior to the enactment of the AJPA, the real risk test was set out in the Court of Appeal decision of Shadrake Alan v Attorney-General.5(2011) 3 SLR 778 at (36) (“Shadrake Alan (CA)”).
Under the “real risk” test, the parameters for scandalising contempt were delineated as follows:
“What is clear is that the “real risk” test will not be satisfied in a situation where the risk of undermining public confidence in the administration of justice is remote or fanciful. And, as explained below (at ), where there is, at the other end of the legal spectrum, a situation that would have satisfied the more stringent “clear and present danger” test, that particular situation would clearly fall within the purview of the less stringent “real risk” test. However, there will be many situations that lie in between and, as already emphasised, much will depend on the particular facts and context of the case in question.”6Shadrake Alan (CA) at (29).
In Jolovan Wham, counsel for Wham argued that, notwithstanding the removal of the word “real” in the second limb of the AJPA, the risk posed to public confidence in the administration of justice would not be satisfied if said risk was “remote or fanciful”. Counsel for Wham argued that given the relatively informal nature of his Facebook page, which contained a blend of personal musings about issues of the day, as well as trivial and light-hearted matters, an ordinary reasonable person reading Wham’s post on his Facebook page would not take Wham’s statements as a serious statement on the Singapore courts. As such, there would be no risk that Wham’s Facebook post would undermine public confidence in the administration of justice.
In rejecting counsel’s argument, the CA held that Parliament’s intention in replacing the common law “real risk” with the “risk” test was to introduce a test that could be applied more expediently and pragmatically, and that avoided hair-splitting or fine distinctions. The CA held that, against such parliamentary intent, continuing to use labels such as “remote” or “fanciful” would not helpful.7Jolovan Wham at (36) to (38). The CA then defined the AJPA “risk” test as follows:
“Is the risk one that the reasonable person coming across the contemptuous statement would think needs guarding against so as to avoid undermining public confidence in the administration of justice?”
In making this assessment, the CA emphasised that both the content and context of the statement may be relevant.8Jolovan Wham at (38).
The question was answered in the affirmative by the CA for Wham’s and Tan’s posts. In so holding, the CA noted that the post was viewable by the general public on Wham’s Facebook profile (its privacy settings was “Public”) and accessible to the world at large, including his 7,000-odd followers. Wham had held himself out as a knowledgeable commentator on social affairs and his post was not intended to be “tongue in cheek”.9Jolovan Wham at (39). Similarly, Tan’s post was also viewable by the general public and accessible to the world at large. Hence there was no issue whether “public” confidence was undermined since the posts were viewable by the general public who may readily access these Facebook pages.
In the course of sentencing, an interesting and novel issue came up for consideration.
Tan, a member of the Singapore Democratic Party (SDP) who had previously stood for elected office, requested that the Court of Appeal sentence him to a term of imprisonment instead of a fine as he wanted to run for electoral office. Under Article 45 of the Constitution of the Republic of Singapore, Tan would be disqualified from standing in the upcoming general election if he was fined more than $2,000. However, he would still be permitted to run for elections as long as he was sentenced to a term of imprisonment of less than one year.
The CA declined to do so, and held that in sentencing, the Court was bound to mete out the appropriate punishment, having regard to the gravity of the offence, the culpability of the offender and the aggravating and mitigating factors. The CA held that it would bring the judicial process into disrepute were it to be seen to be tailoring sentencing with an eye to the political process.10Jolovan Wham at (64).
The CA affirmed Wham’s and Tan’s respective sentences of S$5,000 each, holding that Wham’s and Tan’s posts had cast serious aspersions on the Judiciary. Both Wham and Tan had intended to make the statements and were unremorseful.11Jolovan Wham at (51) and (53).
The CA’s decision on sentence is notable because section 12 (1)(a) of the AJPA provides for a significant maximum fine of up to $100,000 for an offence under the Act, and this is the first benchmark sentence under the AJPA.
Another issue which arose for consideration for the first time under the AJPA was the question of when the Court would order an apology under section 12 (2) of the AJPA.
In addition to the provisions for fines and a term of imprisonment provided for under Section 12 (1) of the AJPA, section 12 (2) provides as follows:
“In addition to any punishment imposed under subsection (1), where a person has committed contempt in relation to the proceedings before a court, the court may refuse to hear the person until the contempt is purged or the person submits to the order or direction of the court or an apology is made to the satisfaction of the court.”
The AG sought an apology order in the High Court and before the CA, on the basis that such an order was necessary in a situation where a respondent was unrepentant and refused to apologise for his contemptuous statement. The CA briefly traversed the jurisprudence on court-ordered apologies, and while it agreed with the AG in principle that “an apology order under the AJPA may primarily serve signalling, educative and corrective functions”12Jolovan Wham at (75)., it held that a mandated apology should only be considered where the content of the contempt and the conduct of the contemnor are so egregious that the imposition of ordinary punishments of fine and imprisonment does not suffice. It also considered that “an insincere apology made under compulsion can have the opposite effect of diminishing the standing of the Judiciary”13Jolovan Wham at (75).. In the circumstances, the CA declined to order an apology.
In considering the AG’s appeal against the High Court’s decision not to grant a “cease publication injunction”, the CA had occasion to consider, for the first time, the operation of section 9(d) of the AJPA which gives the High Court or the CA the power to “issue an injunction including but not limited to an interim injunction to restrain a contempt of court”. The CA granted the cease publication injunction on the grounds that there was a continuing publication of the contemptuous statements as the posts remained viewable on Facebook.
In ordering a cease-publication injunction, the CA held that there was generally no justification for permitting the continued existence or posting of a statement that has already been found to be contemptuous. The CA balanced this against a consideration of whether there were good reasons to leave the contemptuous statements in circulation, such as the technical feasibility of removing the statement or whether the statements had already faded from public consciousness such that the issuance of a cease-publication injunction would only breathe new life into a falsehood that has faded away. The CA held that there was no good reason that militated against granting the cease publication injunction.14Jolovan Wham at (82).
Potential Implications of Jolovan Wham
It is perhaps noteworthy that the first case under the AJPA is also one of the first cases of scandalising contempt relating to publications on Facebook. The other and most recent instance of proceedings brought against an individual for scandalising contempt on Facebook is the ongoing prosecution of Li Shengwu under the common law offence, commenced prior to the entry into force of the AJPA.
Earlier cases on contempt of court have involved journalists publishing in publications such as the Wall Street Journal,15E.g. Attorney-General v Hertzberg Daniel and others (2009) 1 SLR(R) 1103. authors publishing books that had cast aspersions on the operation of the judicial system,16E.g. Shadrake Alan (CA) (2011) 3 SLR 778. and social commentators publishing lengthy blog posts on cases before the court17E.g. Au Wai Pang v Attorney-General (2016) 1 SLR 992..
One of the bases on which the AJPA risk threshold was satisfied in Jolovan Wham was the fact that Wham’s Facebook profile was set to “public”. It remains yet to be seen if a purely private setting and a significantly smaller circle of friends (Wham had 7,000) would make an appreciable difference to the “risk” assessment.
Jolovan Wham sounds a cautionary note that the relative impermanence of a Facebook post, regardless of how few people view or react to the post, is no safe harbour from liability under the “risk” test in the AJPA. This may be of particular concern to those who presently feel a sense of security expressing their criticisms of the courts or the judicial process in an unbridled manner on their personal digital platforms.
For scandalising contempt, it’s the message, not the medium, which is key.
|↑1||(2020) SGCA 16 (‘Jolovan Wham’).|
|↑2||Jolovan Wham at (6).|
|↑3||Jolovan Wham at (8)|
|↑4||Jolovan Wham at (14)|
|↑5||(2011) 3 SLR 778 at (36) (“Shadrake Alan (CA)”).|
|↑6||Shadrake Alan (CA) at (29).|
|↑7||Jolovan Wham at (36) to (38).|
|↑8||Jolovan Wham at (38).|
|↑9||Jolovan Wham at (39).|
|↑10||Jolovan Wham at (64).|
|↑11||Jolovan Wham at (51) and (53).|
|↑12||Jolovan Wham at (75).|
|↑13||Jolovan Wham at (75).|
|↑14||Jolovan Wham at (82).|
|↑15||E.g. Attorney-General v Hertzberg Daniel and others (2009) 1 SLR(R) 1103.|
|↑16||E.g. Shadrake Alan (CA) (2011) 3 SLR 778.|
|↑17||E.g. Au Wai Pang v Attorney-General (2016) 1 SLR 992.|