User:Chuajz/AG v Shadrake

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Alan Shadrake, author of Once a Jolly Hangman: Singapore Justice in the Dock (Petaling Jaya, Malaysia: Strategic Information and Research Development Centre, 2010) was charged with the offence of contempt of scandalising the court. The prosecution alleged that certain passages in his book asserted that the Singapore judiciary lacks independence, succumbs to political and economic pressure and takes a person’s position in society into account when sentencing. The judiciary is the method by which Singapore’s ruling party, the People’s Action Party, stifles political dissent in Singapore.

The issue of contempt of court and its relation to freedom of speech in Singapore are particularly important given the small size of the country that necessitates that public confidence in the administration of justice is not undermined by other comments.

Justice Quentin Loh, found 11 of the 14 statements examined by the court to amount to contempt and fell outside the defence of fair criticism. He further ruled that the ‘real risk’ test for contempt was not significantly different from the 'inherent tendency’ test used in Singapore. However, he surmised that any publication posing real risks of undermining public confidence were prima facie in contempt of court and that only de minimis, remote and fanciful risks are excluded. He stated that whereas the defence of justification and fair comment were not relevant in contempt of court cases, the defence of fair criticism could apply, and this approach adequately balances the freedom of speech and the protection of public confidence in the administration of justice.

The court found Shadrake guilty of the offence of contempt of scandalising the court. His appeal is pending.

Facts
In 2010, British investigative journalist Alan Shadrake was charged with the offence of contempt of scandalising the court through casting aspersions in his book Once a Jolly Hangman: Singapore Justice in the Dock.

14 statements of varying lengths (see below) purportedly alleged the following: For an more specific look at the individual statements, please see here.
 * 1) The Singapore Judiciary succumbed to political and economic pressures when adjudicating on matters concerning the death penalty
 * 2) The Singapore Judiciary is biased against the economically and educationally disadvantaged, or is otherwise guilty of impropriety
 * 3) The Singapore Judiciary is a tool of the People’s Action Party to stifle dissent in the political domain in Singapore

The alleged contempt is criminal in nature however the application for committal was made pursuant to O 52 of the Rules of Court. O 52 is an order for committal that vests the power to punish for contempt of court subject to certain conditions, as well as for the discharge of any person committed.

Contempt of court is defined in this case as “conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes." The case explores the rationale for the law against contempt of court and its relation with freedom of speech, emphasizing the importance of public confidence in the administration of justice that can be impugned by contempt of court.

Ratio decidendi
The ratio decidendi in the instant case was the rejection of the 'inherent tendency' test contended by the prosecution as settled law for matters relating to contempt of court and instead adopted the 'real risk' test suggested by the defence.

The facts of the instant case crossed the higher threshold of the 'real risk' test, and Shadrake was found guilty of contempt of scandalising the court.

Rationale for law of contempt of court
Loh J revisited the rationale for the law of scandalising the court. He examines cases from other jurisdictions to outline the raison d'être: These cases unequivocally identified the public interest as the aim of the law of scandalising the court. With such a law in place, as the cases Loh J cites held, any act to undermine public confidence with the judiciary will be cut down quickly, and this would protect the legitimacy of the court system.
 * Attorney-General v Times Newspaper Ltd from the United Kingdom House of Lords
 * Solicitor-General v Radio Avon Ltd from the New Zealand Court of Appeal
 * Gallagher v Durack from the High Court of Australia
 * Secretary for Justice v Oriental Press Group Ltd and others in the Hong Kong Court of First Instance

Also, Loh J clarified that the main aim of the law was not to protect the dignity of judges, and relied on Andrew Phang JA’s dicta in Pertamina Energy Trading Ltd v Karaha Bodas Co LLC to affirm this, which is as follows: ""It is imperative to note... that the doctrine of contempt of court is not intended, in any manner or fashion whatsoever, to protect the dignity of the judges as such; its purpose is more objective and is (more importantly) rooted in the public interest""

Rather, Loh J emphasized the symbiotic relationship between the courts and the public – where the public relies on the courts to administer justice, the courts rely on the public for its confidence. He hinted that the courts’ role in maintaining public confidence in them was imputed in the common law, holding that “an axiom of the common law [is] that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Loh J also recognised a balance must be struck between “ensuring that public confidence does not falter as a result of such attacks” and “without unduly restricting public discussion on the administration of justice”.

Problems with the 'inherent tendency' test
The prevailing position in Singapore prior to Shadrake was the ‘inherent tendency’ test. This test encompasses a single element: the comments made must “have the inherent tendency to interfere with the administration of justice”, and this must be proved beyond reasonable doubt, as articulated by Sinnathuray J in Attorney-General v Wain Barry J and Others.

There was no need to show that there was a real risk of showing that the administration of justice was being prejudiced by the words. This test adopted in Wain was affirmed in the 2009 case of Attorney-General v Hertzberg. There was also no requirement to prove intent on the defendant’s part under this test. Intent was only a consideration at the sentencing stage as per Prakash J in Attorney-General v Tan Liang Joo John

The inherent tendency test was theoretically easier to fulfill than that of the ‘real risk’ test, thereby causing persons who are charged with scandalising the court to more easily be convicted for the offence. In Shadrake, Loh J identified two problems with the ‘inherent tendency’ test as set out in Wain. First, the Court in Wain refers to interference with the “administration of justice” as opposed to “scandalising the court”. The former is the concern of sub judice contempt while the latter is concerned with public confidence in the administration of justice. Second, such a test means that the words in the impugned publication or speech are to be looked alone. This has the effect of ignoring the circumstances surrounding the uttering or publication of the words, and would potentially make for too harsh a rule.

Adoption of the 'real risk' test
The court cited other jurisdictions in its adoption of the ‘real risk’ test. Throughout the Commonwealth, the test used for determining whether a person was guilty of contempt of scandalising the court was the ‘real risk’ test, and the court in Shadrake referred to this test and adopted it.

Using such a test, the threshold was “a real risk, as opposed to a remote possibility” .This allows the court to take into consideration the circumstances surrounding the uttering or publication of the impugned words and to only hold someone liable if there was a real risk that the person would have created a real risk in the circumstances with which the impugned words were communicated.

The court also discussed reservations that the Hong Kong Court of First Instance had articulated in implementing the ‘real risk’ test. First, that 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." Second, the impugned words must relate “to the section of the public whose confidence in the administration of justice must be affected”.

Loh J recognised that the difference between the 'inherent tendency' and 'real risk' tests were 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 publications which lack the potential effect on reducing public confidence in the administration of justice, Loh J thus adopted the 'real risk' test, thus effectively departing from the previously held 'inherent tendency' test in earlier Singapore cases.

Applying the newly adopted 'real risk' test "for good measure" to the previous cases of Wain, Attorney-General v Chee Soon Juan, Hertzberg and Tan Liang Joo, the court held that the facts of those cases would have fulfilled this test as well.

The court also emphasized several aspects of the test.
 * 1) A real risk is "something more than a de minimis, remote or fanciful risk. It must have substance, but need not be substantial." Thus, a small likelihood would also be considered a real risk.
 * 2) Whether a real risk was posed was a question of fact to be determined objectively taking all the circumstances of the case into consideration. This would include "local conditions" and the scope of the publication's dissemination. Since local conditions may mean that those who come into contact with the impugned publication or words may not be average reasonable persons, the court must be open to take reference from such affected groups, instead of the objective reasonable man.
 * 3) The focus of the real risk test would be whether there was a real risk to public confidence in the administration of justice, and not affecting the judge's hearing the case affected, nor whether a judge is personally offended by the publication.
 * 4) Again highlighting the focus of the real risk test - whether public confidence in the administration of justice has the real risk of being reduced - the court maintained that the requirement for such a real risk, "while very wide, is not illusory". Here, Loh J cites the hypothetical found in Hertzberg and opined as follows: "if 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"

Defences
Fair Criticism was singled out as the applicable defence available in the law of contempt. The defamation defences of justification and fair comment were seen to be inappropriate in protecting the court from attacks and the courts have declined to recognise them both as valid defences.

Justification & Fair Comment

Chee Soon Juan held that the defences of justification and fair comment in the law of defamation were not available in the law of contempt because: The overriding interest in protecting the public’s confidence in the administration of justice necessities a rejection of the defences at law for defamation, 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. Singapore judges have no official forum in which they can respond and they feel constrained by their position not to react to criticism. Similarly, the defence of justification would give malicious parties an added opportunity to subject the dignity of the courts to more bouts of attacks.

In Hertzberg, the court likewise distinguished between the different purposes of contempt and defamation: “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.”

Fair Criticism

The court affirmed and elaborated on the view of Tan Liang Joo, accepting that fair criticism does not amount to contempt of court. Any risk posed to public confidence as a result of fair criticism is justified and the burden of proof lies with the defendant to show that he was acting within his right of fair criticism. The necessary elements of the defence are as follows:


 * 1) There should be some objective basis for the allegation made and it must be stated together with the criticism. Proof of the allegation is not necessary, merely some rational basis for it;
 * 2) The person must genuinely believe in the truth of the criticism he made (made in good faith), which necessitates that the person must know the factual basis for his criticism before the allegation is made;
 * 3) 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 that the man in the street is entitled to criticise the courts as well;
 * 4) There is no limit to the kind of criticisms 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.

The 14 Statements
The court individually examined the 14 statements impugned by the Attorney-General to determine whether they were made with rational bases and/or in good faith so as to constitute fair criticism. In doing so, the court determined whether some or all of the 14 statements, contextually considered, posed a real risk to public confidence in the administration of justice, and, if so, whether Mr Shadrake is entitled to claim fair criticism in respect of them. The court interpreted the 14 statements to mean the following:

1st Statement: The pronouncement of the death penalty is determined by politics, international trade and business

2nd Statement: The Singapore government reduced a capital offence to a non-capital offence for a “known” German drug  trafficker, Julia Bohl, on threat of economic reprisals by the German government

3rd Statement: The case of Ngyuen Tuong Van, an Australian who was convicted of drug trafficking and sentenced to death, put the spotlight on Singapore’s legal system

4th Statement: Alleges the lack of judicial independence when “vital business, economic and diplomatic issues are at stake”, in relation to the case of Krol-Hmelak, whom he asserts most people believe was guilty and hence sentenced to be hanged.

5th Statement: Justice in Singapore favours the privileged while is biased against the weak and disadvantaged. This is shown by the conduct of wealthy foreigners who manage to evade the death penalty because of their economic might

6th Statement: The implementation of the death penalty in Singapore is skewed towards those who are poorer and less educated

7th Statement: Insinuates that the sentencing of Dinesh Singh Bhatia, son of a former High Court Judge and a former Member of Parliament for cocaine consumption was less than any other person in the same situation would have received. This was because of his social position and class. His home detention, rather than imprisonment is also insinuated to have been arranged by the courts and his sentence a result of favouritisim

8th Statement: Relates to 2 others who were caught in the same operation which netted Dinesh Bhatia (see 7th Statement). A Briton who was a top financial broker and his high-profile Singaporean girlfriend it alleges were also given light sentences because of their position in society and the importance of the Briton’s job in the finance industry

9th, 10th and 11th Statements: Alleges that Vignes Mourthi, a drug trafficker was convicted and sentenced to death based on evidence given by Sgt Rajkumar of the Central Narcotics Bureau who was himself under investigation for several crimes. Sgt Rajkumar’s charges were concealed from the trial judge by the judiciary until the case of Vignes Mourthi had been closed

12th Statement: Any political dissent was quashed because the judiciary was “fine-tuned” to ensure that Lee Kuan Yew and his People’s Action Party by jailing political opponents as communists or bankrupting them

13th and 14th Statement: Alleges the judiciary is compliant and not independent and that the courts will find for the ruling party, on “trumped up defamation charges” and in doing so suppresses basic political freedoms

Conclusion on the facts
The court found the 3rd, 6th and 12th statement not to amount to contempt 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. Loh J put it as such: ""Given that the book is or was available publicly, and continues to be circulated, there is certainly mroe 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.""

Shadrake fails on the defence of justification, as he "has simply not furnished any rational bases for these very serious accusations".

Regarding whether Shadrake could rely on the defence of fair criticism, the court held that he could not, as they were made “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.”

In making his postscript remarks Loh J affirmed that the courts' interest is not in stifling public debate on matters of public interest, which included the conduct of judges, and are in fact obliged to protect the freedom of speech guaranteed to citizens. Nevertheless, he held that "when such debate goes beyond the limits of fair criticism the law will step in" to ensure public confidence in the administration of justice is upheld. This, according to him, "in the final analysis is the surest guarantee that justice will in fact be administered, in accordance with the law."

Significance
Shadrake was sentenced to six weeks’ jail and fined $20,000, which is the heaviest punishment handed down in Singapore for contempt of court by scandalising the judiciary. Amnesty International decried the sentence as a ‘sharp blow to freedom of expression’ and stated that Singapore had drawn even greater global attention to its lack of respect for freedom of expression. A statement on the British High Commission website, issued by the Foreign and Commonwealth Office in London, expressed dismay at Shadrake’s sentence.

The High Court judge, Loh J, created a buzz in legal circles by departing from a longstanding practice in favouring the ‘real risk’ test and rejecting the ‘inherent tendency’ test. What Loh J did was significant, said lawyers who have studied contempt cases, because the ‘real risk’ formula is clearer, even though he had defined it broadly. Under his definition, a statement with even a trace of risk of undermining public confidence in the courts would be found in contempt. Indeed, the judge made it plain that the two tests are not significantly different. The broader significance of the decision lay in the judge’s interest in authorities from other jurisdictions, and his according due weight to their analysis, rather than stressing what have been argued to be Singapore’s exceptional circumstances as reasons to go our own way regardless of directions elsewhere in the common law. The use of the ‘real risk’ test is also significant as it comes at a time when the Government is planning to codify the law on contempt.

Constitutional Considerations
Counsel for the defendant, M Ravi argued that Article 14 of the Singapore Constitution compelled the judge to adopt the 'real risk' test." . Article 14 of the Constitution reads as follows:

"Freedom of speech, assembly and association

14.-(1) Subject to clauses (2) and (3)- (a) every citizen of Singapore has the right to freedom of speech and expression;

(2) Parliament may by law impose- (a) on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide agains contempt of court, defamation or incitement to any offence"

Article 14 does not define the offence of contempt and hence by necessary implication it is to be defined by the courts. Loh J states that in defining the offence, judges must be cognizant that the definition must be circumscribed by Article 14, to ensure a balance between the freedom of speech and the offence. Neither can be defined in such a way that renders the other otiose.".

Although accepting this, Loh J went on to state that despite numerous references to constitutional authorities in other jurisdictions, Ravi had not directly addressed the issue of how Article 14 compelled the adoption of the 'real risk' test. Furthermore, he had not challenged the issue of scandalising the court as being unconstitutional, and that the majority of cases have concluded that the real risk test, coupled with a right of fair criticism, constitutes a reasonable limit on the freedom of speech and expression.".

Interestingly, neither Loh J nor Ravi seemed to bring up the issue that Article 14 applies only to citizens of Singapore. Shadrake is neither a citizen nor a permanent resident of Singapore and hence Article 14 does not apply to him.