High Court · Decided 3 November 2010

Attorney-General v Shadrake Alan

Feedback & support

[2010] SGHC 327Case no. Originating Summons No 720 of 2010

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Laws this judgment relies on

Grounds of decision

Official text from eLitigation

Quentin Loh J:
Introduction
[1] This is an application by the Attorney-General to commit Mr Alan Shadrake, the author of Once a Jolly Hangman: Singapore Justice in the Dock (Petaling Jaya, Malaysia: Strategic Information and Research Development Centre, 2010) (“the book”), for contempt of court in relation to certain passages in the book. These passages are said to scandalise the judiciary by alleging or insinuating that:
(a) the Singapore Judiciary, in determining whether to sentence an accused person to death, succumbs to political and economic pressures, and more generally does not mete out justice impartially, lacks independence and is complicit in an abuse of the judicial process;
(b) the Singapore Judiciary is biased, particularly against the weak, poor and less educated, or is otherwise guilty of impropriety; and
(c) the Singapore Judiciary is a tool of the People’s Action Party to muzzle political dissent in Singapore.
While the alleged contempt is criminal in nature, the application for committal is made, as is usual in such cases, pursuant to O 52 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed).
The Law: Generally
[2] The contempt being alleged here is the contempt of scandalising the court. The law in Singapore on this issue can be mainly found in nine reported decisions of the High Court spanning from September 1967 to February 2009: Re application of Lau Swee Soong [1965–1967] SLR(R) 748 (“Lau Swee Soong”); A-G v Pang Cheng Lian [1974–1976] SLR(R) 271 (“Pang Cheng Lian”); A-G v Wong Hong Toy [1983–1984] SLR(R) 34 (“Wong Hong Toy”); A-G v Zimmerman Fred [1985–1986] SLR(R) 476 (“Zimmerman”); A-G v Wain Barry J [1991] 1 SLR(R) 85 (“Wain”); A-G v Lingle [1995] 1 SLR(R) 199 (“Lingle”); A-G v Chee Soon Juan [2006] 2 SLR(R) 650 (“Chee Soon Juan”); A-G v Hertzberg Daniel [2009] 1 SLR(R) 1103 (“Hertzberg”); and A-G v Tan Liang Joo John [2009] 2 SLR(R) 1132 (“Tan Liang Joo”). There are other cases which also touch on this issue and I will be referring to them in due course.
[3] Counsel vigorously disputed the appropriate test to be applied in deciding whether the statements complained of have scandalised the court.
(a) Ms Subramanian for the Attorney-General submitted that the law has been settled by the decisions set out above. The test to be applied is the inherent tendency test, viz, whether the acts or words complained of had the inherent tendency to interfere with the administration of justice. This test is said to countenance a lower threshold. This is so even though Ms Subramanian accepts that the burden on her is proof beyond a reasonable doubt.
(b) Mr Ravi, counsel for Mr Shadrake, argued that the real risk test should be applied, ie, the Attorney-General had to prove that the acts or words complained of had a real risk of undermining public confidence in the administration of justice in Singapore. This test is said to have a higher threshold relative to the inherent tendency test. Mr Ravi argues that other jurisdictions apply the real risk test and we should do the same. Mr Ravi also argues that what Mr Shadrake wrote is also fair criticism and within the right of free speech guaranteed under Article 14 of our Constitution.
There is no Court of Appeal decision on this point. Mr Ravi says I am therefore free to depart from these earlier decisions and urged me to do so as our society is now more mature and more educated.
[4] Ms Subramanian for the Attorney-General submitted that the “inherent tendency” test has been affirmed and settled by these decisions, which I should follow. In this regard she cited Mah Kah Yew v PP [1968-1970] SLR(R) 851 and Young v Bristol Aeroplane [1944] 1 KB 718. I do not think that either Mah Kah Yew or Young v Bristol Aeroplane assists the Attorney-General here. Mah Kah Yew did not lay down a rule of horizontal stare decisis for the High Court, and the rule of horizontal stare decisis stated in Young v Bristol Aeroplane is inconsistent with Court of Appeal authority expressly affirming that the High Court is not bound by its previous decisions: see Wong Hong Toy v PP [1985-1986] SLR(R) 656 at [11]. In fairness, Ms Subramanian did concede that I am not technically bound by previous decisions of the High Court.
[5] It is therefore necessary, in light of Mr Ravi’s arguments for changing the test and the law, for me to consider the Singapore cases, the decisions from other jurisdictions cited to me by Mr Ravi, as well as the substantive reasons for and against departing from the present position. However, I must bear in mind that the decisions of my learned colleagues and predecessors over the past four decades are entitled to the very greatest respect and unless there are compelling reasons to do so, I should not depart from them.
The rationale for the law and its relation with the freedom of speech
[6] It is appropriate to begin the discussion by recalling the rationale underlying the contempt of scandalising the court, a rationale which is often stated but still bears repetition. In Wilmot J’s draft judgment in R v Almon (1765) Wilm 243 at 255–256, which was not delivered because the prosecution was dropped, but, according to the reporter’s note, was nevertheless reported because “it was thought to contain so much legal knowledge on an important subject, as to be worthy of being preserved”, the rationale is articulated thus:
[7] The importance of public confidence in the administration of justice, emphasised in Wilmot J’s eighteenth century opinion, has continued to receive judicial affirmation across common law jurisdictions in modern times. Lord Diplock declared in A-G v Times Newspaper Ltd [1974] 1 AC 273 at 307 (“Times Newspaper”) that:
And at 309, that:
[8] In S-G v Radio Avon Ltd [1978] 1 NZLR 225 (“Radio Avon”), the New Zealand Court of Appeal, whose judgment was delivered by Richmond P, stated at 230 that:
[9] In Gallagher v Durack (1983) 152 CLR 238 at 243, the majority of the High Court of Australia, comprising Gibbs CJ, Mason, Wilson and Brennan JJ, stated that:
[10] In Secretary for Justice v Oriental Press Group Ltd and others [1998] 2 HKC 627 (“Oriental Press Group”), the Hong Kong Court of First Instance stated at [48] that:
[11] In Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] 2 SLR(R) 518, Andrew Phang Boon Leong JA, writing for the Court of Appeal in the context of alleged breaches of court orders, similarly stated at [22] that:
[12] The focus on the administration of justice, as opposed to the personal dignity and sensibilities of judges, is reflected in, among other things, the fact that contempt only applies in respect of publications relating to a judge qua judge; it does not apply comments directed at a judge purely in his personal capacity: see the Privy Council’s advice In the Matter of a Special Reference from the Bahamas Islands [1893] AC 138. In theory, the appropriate cause of action in such situations is slander or libel. But to my knowledge our judges have not seen fit in the past to bring such actions, and I do not foresee that they will do so in the future.
[13] It is apparent that the offence represents a significant restriction on free speech and expression. In this regard, the common law has, even before the advent of explicit constitutional guarantees, jealously protected the right to make fair criticism of the courts. As Lord Atkin declared in his memorable speech in Ambard v A-G of Trinidad and Tobago [1936] 1 AC 322 at 335 (“Ambard”):
[14] The first Lord Russell of Killowen CJ, whose statement of the law on contempt, which I shall come to, has been cited with approval by more than one of our Singapore cases, spoke to similar effect in R v Gray [1900] 2 QB 36 at 40:
[15] Lord Denning MR has also affirmed the right to criticise the courts in R v Commissioner of Police, ex parte Blackburn (No 2) [1968] 2 QB 150 at 155, but requested would-be detractors to remember that the court would be unable to respond to them:
[16] I would add the following observations of my own. The relationship between the courts and the public is symbiotic. Individuals depend on the courts to administer justice impartially and effectively; to do so, the courts require the confidence of the public. Without the confidence of the public, the laws administered by the courts cease to embody the collective will of the community; the force of law gives way to the law of force. It is in the public interest that the public confidence in the courts to administer justice in accordance with law does not falter. On this the cases speak with one voice. It is therefore an axiom of the common law that justice should not only be done, but should manifestly and undoubtedly be seen to be done. It is similarly imperative that the public continues to maintain an active interest and trust in the administration of justice.
[17] Judges do not claim infallibility, contrary to what Mr Ravi says. As the Chief Justice said, in discussing courts as institutions: “There are learned judges and less learned judges. There are strong judges and weak judges. There are industrious judges and lazy judges.” See “Securing and Maintaining the Independence of the Court in Judicial Proceedings” [2010] 22 SAcLJ 229 at [30]. Not to acknowledge this fact of life is to act like the proverbial ostrich burying its head in the sand.
[18] Neither do judges entertain for a moment the naive conceit that confidence in the courts can be won by sanctioning those who criticise the courts. If anything, unmerited punishment results in derision and resentment. At the end of the day, the confidence of the public can only be won if we faithfully adhere to our constitutional oath to do right by all manner of people after the laws and usages of the land, without fear or favour, affection or ill-will, to the best of our abilities, and to preserve, protect and defend the Constitution of the Republic of Singapore.
[19] There is, nevertheless, a meaningful role for the offence: given the restraint which judges must exercise in replying to their critics, the offence provides an avenue for the Attorney-General, as the guardian of the public interest, to bring to task those who make dishonest, unwarranted or baseless attacks which, if left unchecked, would impair the confidence of the public in the administration of justice. If exercised scrupulously, the power of the court to punish for contempt would have the salutary effect of ensuring that public confidence does not falter as a result of such attacks, without unduly restricting public discussion on the administration of justice. The balance is well-stated by the Chief Justice in [2010] 22 SAcLJ 229 at [21]:
Which courts are covered
[20] There was no dispute before me that the contempt of scandalising the court can be committed against the Supreme Court as well as the subordinate courts constituted under the Subordinate Courts Act (Cap 321, 2007 Rev Ed). This must be right: the offence should extend to all courts exercising the judicial power of the Republic, which under Article 93 of the Constitution is vested “in a Supreme Court and such subordinate courts as may be provided by any written law for the time being in force.” However, as the subordinate courts only have the power to punish for contempt committed in the face of the court (see s 8(1) of the Subordinate Courts Act), the contempt of scandalising the court can only be punished by the High Court.
Actus reus: Real risk or inherent tendency
[21] I turn to consider the elements required at common law for establishing the contempt of scandalising the court. As mentioned, the appropriate test to be applied is strongly disputed by both parties.
[22] The fount of the modern law is the judgment of Lord Russell CJ in R v Gray, where he states at 40:
Lord Russell CJ’s is the first English decision on scandalising the court in the twentieth century, coming a year after Lord Morris declared in M’Leod v St Aubyn [1899] AC 549 at 561, wrongly as it turned out, that: “Committals for contempt of Court by scandalizing the Court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.” All the same, it has to be noted that the definition of contempt was not an issue faced by the court, since counsel conceded that the publications in that case were clearly contemptuous.
[23] Given the arguments before me, an important question is what Lord Russell CJ meant by “calculated”. Little guidance is provided in his Lordship’s short judgment. Some assistance can be derived from his Lordship’s earlier judgment in R v Payne [1896] 1 QB 577, concerning an alleged interference with pending proceedings. There it was emphasised at 580 that: “Every libel on a person about to be tried is not necessarily a contempt of Court; but the applicant must shew that something has been published which either is clearly intended, or at least is calculated, to prejudice a trial which is pending.” This dictum clearly uses “calculated” to mean effect, in contradistinction to intention, or purpose. But, crucially for present purposes, it leaves unclear whether effect refers to the effect of the publication, read by itself, or the effect of the publication in the circumstances and context in which it was published. This was left to later cases, which I will come to in a moment.
[24] The “real risk” formulation first appeared in the judgment of the court, delivered by Lord Parker CJ, in R v Duffy, ex p Nash [1960] 2 QB 188 (“R v Duffy”), concerning an alleged interference with pending litigation. Lord Parker CJ founded himself on the law as stated by Lord Russell CJ in R v Payne, including the dictum which I have just referred to, as well as the dictum of Lord Goddard CJ in R v Odhams Press Ltd [1957] 1 QB 73 at 80: “The test is whether the matter complained of is calculated to interfere with the course of justice.” In concluding the judgment, Lord Parker CJ held that:
There is nothing which indicated that Lord Parker CJ intended to depart from the existing law in requiring that there should be a “real risk, as opposed to a remote possibility” that the offending article was calculated to prejudice a fair hearing.
[25] In any event, the real risk standard was approved in Times Newspaper, which concerned an alleged interference with pending litigation. Lord Reid held at 298–299:
At 312, Lord Diplock agreed with Lord Reid’s formulation:
It is clear from the quoted passage from Lord Reid’s speech that resort to context is necessary to determine the effect of the publication.
[26] Times Newspaper was not cited to the Privy Council in Lutchmeeparsad Badry v Director of Public Prosecutions [1983] 2 AC 297 (“Badry”), an appeal from Mauritius where the Board considered at 304 that “nothing has intervened in the past 80 years to invalidate the analysis of the first Lord Russell of Killowen in Reg. v. Gray [1900] 2 Q.B. 36”. The constitution of the Board in Badry was completely different from the House in Times Newspaper. Nevertheless, the Board’s analysis at 305–306 of the several publications said to scandalise the court casts light on what it understood to be the long established test in R v Gray:
It is clear that the Board thought that, in deciding whether the publications were “calculated to bring a judge of the court into contempt or to lower his authority”, it was necessary to look at the actual or potential effect of the words in light of the conditions and context in which they were uttered. Therefore, in this regard at least, the traditional test formulated by Lord Russell CJ in R v Gray and applied by the Privy Council in Badry is not different from the “real risk” test formulated by Lord Parker CJ in R v Duffy and accepted by the House of Lords in Times Newspaper. Badry is also instructive for the Board’s observation that what may scandalise the judiciary in Mauritius may not have a similar effect in England.
[27] Times Newspaper was clearly accepted in New Zealand, where the Court of Appeal held in Radio Avon at 234, after referring to the speeches of Lords Reid and Diplock, that:
[28] In Hong Kong, the Court of First Instance in Oriental Press Group referred to the above authorities and accepted the “real risk” standard, subject to the following two reservations, stated at [55]:
The appeal by one of the parties to the Court of Appeal was dismissed, with all members of the court agreeing that the “real risk” standard was correct: Wong Yeung Ng v Secretary for Justice [1999] 2 HKC 24 (“Wong Yeung Ng”). The Court of Final Appeal refused leave to appeal further, declaring that: “The courts below have given detailed and cogent reasons for reaching their conclusion ... There is no prospect of the Court of Final Appeal differing from their conclusion”: Wong Yeung Ng v Secretary of Justice [1999] 3 HKC 143 at [13].
[29] In Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 306 (“Ahnee”), the Privy Council was also to advise in an appeal from Mauritius that “[t]here must be a real risk of undermining public confidence in the administration of justice” before the offence of contempt was made out.
[30] The Australian position is similar: see R v Hoser and Kotabi Pty Ltd [2001] VSC 443 at [55] (“Hoser”) and McGuirk v University of NSW [2009] NSWSC 1058 at [239] to [272]. In Hoser, Eames J added, at [226] and [228] a practical dimension to the application of the “real risk” test:
Eames J’s dictum is a useful reminder that the offence of scandalising the court is not based on the sensibilities of judges – if public confidence in the administration is actually or potentially affected, the publication is prima facie in contempt; it matters not that the judge himself prefers to exhibit an attitude of lofty disregard. On appeal, the Victorian Court of Appeal affirmed Eames J’s finding that “there was a real risk that as a matter of practical reality [the impugned publication] had a tendency to undermine the confidence of the public in the administration of justice and lower the authority of the courts”: Hoser v R [2003] VSCA 194 at [36].
[31] I turn now to the position in Singapore. In Lau Swee Soong, decided soon after Independence, Choor Singh J cited approvingly the “real risk” formulation adopted by Lord Parker CJ in R v Duffy. As shown above, this was the progenitor of Times Newspaper and other decisions which adopted the “real risk” formulation. Lau Swee Soong itself concerned ministerial remarks said to prejudice the trial of the respondent, who was a student charged for rioting.
[32] Lord Russell CJ’s test in R v Gray has been cited with approval in Pang Cheng Lian, Wong Hong Toy, Wain, Lingle, Chee Soon Juan, and Tan Liang Joo. I have already considered Badry’s case, which makes clear that Lord Russell CJ’s test requires a consideration of the context in which a publication was made before concluding that it scandalises the court.
[33] The “inherent tendency” test was first articulated by Sinnathuray J in Wain at [54]:
This passage was subsequently to be relied on in other decisions of the High Court. It is, with respect, unhappily worded. It refers to interference with the administration of justice, which is the concern of sub judice contempt, whilst the contempt of scandalising the court is concerned with public confidence in the administration of justice. It also uses the “inherent tendency” formula, suggesting that the words in the impugned publication are to be looked at alone. But it is clear that Sinnathuray J did not mean either of these things. At [61], the learned judge stated that: “In applying the law to the facts in these proceedings, I was mindful of the following general considerations”, before going on, at [61] to [64], to consider the fact that the offending article was contained in a financial newspaper of international repute which enjoyed a wide regional circulation in Asia; written by the president of a major news organisation in the United States; and published at a time when the impugned decision was given saturation coverage in Singapore papers. These contextual considerations relating to the potential effect of the impugned publication would not be necessary if Sinnathuray J truly meant for the offending words to be looked at alone, or if he meant to look at interference with the actual administration of justice. Also, the contextual considerations could not have counted towards sentence, which was considered in a separate judgment: A-G v Wain Barry J [1991] 1 SLR(R) 108. In the circumstances, I have my doubts that Sinnathuray J meant to depart from the traditional approach; indeed he referred approvingly, at [43], to the dictum in Badry that nothing has intervened to invalidate the analysis of Lord Russell CJ in R v Gray. I have already mentioned that Badry would assess the potential effect of the impugned publication in context. For completeness, however, and with great respect, it should be stated that Sinnathuray J was plainly wrong in distinguishing (at [34]) the English authorities after the beginning of the 1980s on the basis that they were affected by the UK Contempt of Court Act 1981 (c 49) – that Act did not regulate the contempt of scandalising the court and this was very clearly stated in Badry at 303–304.
[34] The “inherent tendency” test was subsequently referred to in decisions of the High Court and seems to have developed a life of its own. The cases referring to Wain are Lingle, Chee Soon Juan, Hertzberg and Tan Liang Joo. It is necessary to consider precisely what these cases decided.
[35] In Lingle, Goh J referred to Wain for the proposition that it was not necessary to show that a person intended to interfere with the administration of justice before he can be held for contempt. As for the general test Goh J followed R v Gray, describing it as the locus classicus of this area of the law. The only issue in Lingle was whether the impugned publication, an article in the International Herald Tribune, referred to the Singapore courts. Counsel conceded that an allegation that the judiciary was compliant to politicians amounted to scandalising the court. There was therefore no consideration of the “inherent tendency” test. However, it is interesting to note that Goh J referred to the following dictum of Hope JA in A-G of New South Wales v Mundey [1972] 2 NSWLR 887 at 911:
Goh J’s judgment did not indicate that he saw a difference between the “inherent tendency” formula used by Hope JA, and Lord Russell CJ’s dictum in R v Gray.
[36] In Chee Soon Juan, the court held at [30] to [31] that:
The offending publication in Chee Soon Juan was a statement impugning the impartiality of the judiciary. It was first read during a bankruptcy hearing and subsequently distributed to media representatives outside the courtroom and copied to 59 separate persons and organisations elsewhere. However, the learned judge in Chee Soon Juan did not advert to this fact in her analysis as to whether the impugned statement was contemptuous, indicating that she understood the “inherent tendency” test to require only an examination of the words used in the publication. For the reasons given above, I am doubtful that Wain is authority for such a proposition. That said, given the circulation of the impugned statement, whose contents were found to be contemptuous, I have no doubt that the facts of Chee Soon Juan would have satisfied the “real risk” test, had it been applied.
[37] In Hertzberg, the court explored the “inherent tendency” test in some detail. It is necessary to quote the judgment at some length:
[38] It is clear from [31] that the court regarded the “inherent tendency” test laid down in Wain as simply requiring an analysis of the words used, to determine whether they convey to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function. I have already said that I am, with respect, doubtful that Wain can stand for this proposition.
[39] Further, as Mr Ravi suggested, it is not clear that Hertzberg fully appreciated the definition of the law relied on in the two law reform reports which it drew on in support of the inherent tendency test, viz the Australian Law Reform Commission’s Report No 35, “Contempt” (Australian Government Publishing Service: Canberra, 1987), and the New South Wales Law Reform Commission’s Report No 100, “Contempt by publication” (2003): see Hertzberg at [17], [32] and [33]. In criticising the “inherent tendency” test, the former report stated at para 431 that:
As mentioned, the test in Times Newspaper, Ahnee, Radio Avon and Wong Yeung Ng, referred to at [32] of Hertzberg, defined “real risk” in contradistinction to a “remote possibility”, ie the same way which the Australian Law Reform Commission defined “inherent tendency” in the passage just quoted. (The proposition in the report that an inherent tendency seems somewhat less substantial than a real risk does not find support in the case law.) Therefore, it is unclear why Hertzberg rejected the “real risk” test laid down in those decisions but agreed with the “inherent tendency” test as defined in the report of the Australian Law Reform Commission’s report. As for the report of the New South Wales Law Commission, Hertzberg relied (see [17]) on its section on sub judice contempt, where the law was described as follows:
Speaking for myself, it is difficult to see any practical distinction between, on the one hand, the report’s formula of a “real and definite tendency, as a matter of practical reality” and the requirement to consider the “potential effect of a publication”, and, on the other hand, the “real risk” test articulated in the decisions rejected in Hertzberg.
[40] On the facts, Hertzberg concerned three articles contained in the Wall Street Journal Asia. Given that the contents of the articles were found to be contemptuous, I have no doubt that the facts in Hertzberg would have satisfied the real risk test, had it been applied.
[41] Finally, in Tan Liang Joo at [12], Prakash J followed the “inherent tendency” test as articulated by the previous decisions but with an important proviso that context is relevant:
It is significant that Prakash J cites [61] to [64] of Wain as authority for her proposition that the words must be understood “in the circumstances that obtained at the time of the act or words”. Those paragraphs contained no such words. They were, as indicated above, the paragraphs where Sinnathuray J applied the “inherent tendency” test formulated by him to the facts. But, as I noted above, Sinnathuray J’s reference to the context of the impugned publication in those paragraphs, among other things, indicated that he did not mean to introduce a test that was divorced from context. This was clearly not lost on Prakash J, who considered the impugned conduct in context – the wearing of “kangaroo court” t-shirts in the precincts and vicinity of the Supreme Court – before concluding that they scandalised the court.
[42] With respect, it is apparent to me that, on close examination, the Singapore authorities are not as clear or settled as Ms Subramanian submitted or as Mr Ravi assumed. Singh J in Lau Swee Soong approved R v Duffy, which contained the “real risk” formula taken up in later cases. Several other cases relied on R v Gray, which as interpreted in Badry required the consideration of the potential effect of the impugned publication in the circumstances in which it was published. Wain adopted the “inherent tendency” formula, but in applying it made clear that the potential effect of the publication must still be considered. Wain also rejected a test based on a real risk of prejudicing the administration of justice. Hertzberg interpreted Wain to mean that a statement which is said to have an inherent tendency to interfere with the administration of justice is simply one that conveys, to an average reasonable reader, allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function. Chee Soon Juan was to similar effect. Hertzberg also rejected a test based on a real risk of undermining public confidence in the administration of justice, while at the same time referred approvingly to sources which defined “inherent tendency” no differently from the way “real risk” was defined in the Commonwealth authorities. Finally, Tan Liang Joo affirmed the inherent tendency test, but made explicit the need, implicit in Wain, to have regard to the circumstances that obtained at the time of the impugned publication.
[43] Against this state of the law, it is impossible to say that there is a settled approach which binds me, or which I should follow as a matter of consistency between High Court decisions. It is, in fact, necessary to return to first principles and policy considerations to determine what the test should be.
[44] As can be seen from the authorities I have referred to, the universally accepted rationale for this area of the law of contempt is the preservation of public confidence in the administration of justice. In my view, it follows quite imperatively from this rationale that the doctrine should, at the very most, capture only conduct which has some potential adverse effect on public confidence in the administration of justice. Conversely, the rationale cannot support intervention in conduct which has no actual or potential adverse effect on public confidence in the administration of justice. To the extent that any of the cases contradict this proposition, I must respectfully decline to follow them.
[45] I turn now to consider the policy concerns expressed in the various High Court decisions. In Wain at [38], it was said that, differently from other jurisdictions, “the administration of justice in Singapore is wholly in the hands of judges and other judicial officers ... this condition must weigh heavily in the application of the law of contempt in Singapore.” This concern is undoubtedly valid, but in my view it can easily be accommodated in assessing the potential effect of the impugned conduct. Mr Ravi points out, relying on the article by Michael Hor and Colin Seah, “Selected Issues in the Freedom of Speech and Expression in Singapore” (1991) 12 Sing L Rev 296 at pp 306–307, that other jurisdictions have not seen fit to apply a test which differentiates between bench trials and jury trials. But I remain of the view that this is a valid factor: in Singapore any mistake in deciding a case must necessarily be the responsibility of the judge, and cannot be deflected to the jury or anyone else.
[46] In Chee Soon Juan at [25], it was said that “the geographical size of Singapore renders its courts more susceptible to unjustified attacks”. In support of this proposition Chee Soon Juan referred to Ahnee at 306, where the Privy Council advised, in the context of an appeal from the Supreme Court of Mauritius, that “on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court on a small island is greater”. Again I have no hesitation in accepting this as a general proposition. Mathematically, the same conduct will, all other things being equal, have a greater actual or potential effect in a jurisdiction with a smaller bench, a smaller population and a smaller land area. However, I should point out, with all due respect, that immediately after making the quoted remarks, the Privy Council went on to make clear that “[t]here must be a real risk of undermining public confidence in the administration of justice” before the offence was made out. It is also pertinent to note that, in Wong Yeung Ng, Mortimer V-P in the Hong Kong Court of Appeal affirmed the lower court’s adoption of the “real risk” standard (see above), even as he cautioned at [55] of his judgment that:
[47] In Hertzberg at [33]–[34], which I set out again, it was said that:
The two concerns at [33] can well be met by a test which includes the potential, and not merely the actual, effect of the impugned conduct. As for the hypothetical given at [34], it would be an overzealous judiciary that would regard rants (and especially inebriated rants) at a dinner party as undermining public confidence in the administration of justice when no one takes serious notice of or is bothered by those rants.
[48] In my judgment, the policy concerns articulated above require a test which is based on the potential adverse effect of the impugned conduct, as assessed in the circumstances above. They do not require a test wider than that. As for what degree of potentiality is required, I think that there is no need for the law to intervene when the potential adverse effect on the administration is de minimis, remote or fanciful. The law does not concern itself with trifles, and the law of contempt is no exception. To the extent that the cases say otherwise, I would, with the greatest of respect, decline to follow them.
[49] In my view, the various formulae adopted in the cases – conduct calculated to lower the authority of the court, conduct having the inherent tendency of conveying allegations of bias and other impropriety against the court, and conduct posing a real risk of undermining public confidence in the administration of justice, and so on – are not inconsistent with what I have said. Both counsel seemed to have proceeded on the basis that there was a significant difference between the real risk test urged by Mr Ravi and the inherent tendency test defended by Ms Subramanian. I very much doubt this is the case. Here it is appropriate to go back to Lord Reid’s speech in Times Newspaper, which I set out again:
Lord Reid was defining a real risk in contradistinction to a remote possibility, and that he considered this to be an application of the de minimis principle, which is the general principle that courts of justice do not take trifling and immaterial matters into account: Jowitt’s Dictionary of English Law, 3rd ed (Sweet & Maxwell, 2010), vol 1 at p 642. I do not think that the inherent tendency test, as formulated in Wain, goes wider than that.
[50] But at the end of the day I must settle on a formula, and in doing so I would adopt the attitude of the English Court of Appeal in Times Newspaper, [1973] 1 QB 710 at 725:
Now, if it were a pure question of semantics I would see no reason to depart from the “inherent tendency” formula established in Wain, which, as I read it, required an assessment of the effect of the impugned publication in the context it was made. But, with respect, that formula has shown itself to be susceptible of controversy and misunderstanding, not least because the literal meaning of inherent tendency tends to obscure the fact that a contextual analysis is actually required. Indeed, given how the word “inherent” is commonly understood to indicate something intrinsic, an inherent tendency test would therefore appear to preclude any consideration of extrinsic factors. This unnecessary complication need not exist. Similarly, the test has also appeared at times to encompass, in theory at least, publications which have no potential effect on public confidence in the administration of justice. I would therefore prefer the “real risk” formula, that is, a publication must pose a real risk of undermining public confidence in the administration of justice before it is held to be contemptuous. This formula, in my view, precisely conveys to the layman, and indeed to lawyers, what the law is concerned with.
[51] I should emphasise several aspects of the test. First, a real risk, as defined in the cases, is not to be equated with a serious or grave risk, but merely something more than a de minimis, remote or fanciful risk. It must have substance, but need not be substantial. A fortiori, it is not necessary to show that public confidence was actually undermined by the impugned publication. As Lord Reid made clear in his speech in Times Newspaper, any degree of risk above the de minimis level, including “a small likelihood”, is a contempt, with the seriousness of the risk going only to mitigation. For good measure, I should reiterate that the facts of the Singapore cases where the “inherent tendency” test was applied – viz Wain, Chee Soon Juan, Hertzberg and Tan Liang Joo – would have satisfied the “real risk” test as I have stated it.
[52] Secondly, whether such a real risk is posed is eminently an objective question of fact to be determined in light of all the circumstances of the case, including the author and nature of the publication and the scope of its dissemination (Wain), and bearing in mind local conditions (Badry). In this last regard, important considerations include the fact that we are a small, crowded, multiracial and multi-religious nation, where information travels rapidly and where social tensions, if developed and brought to a boil, will rapidly propagate. Some of the factors emphasised in the cases should also be borne in mind. The first is that raised in Oriental Press Group at [55], that those who come into contact with the impugned publication may not always be average reasonable persons. They may be less rational, or, I should add, they may be more discriminating. It is therefore not always appropriate to assess the real risk to public confidence by reference to the average reasonable person – the appropriate reference point depends on the facts of each case. The second consideration is that raised in Wong Yeung Ng by Mortimer V-P at [53], and by Eames J in Hoser at [228] – the court must consider what would happen if the impugned publication was left unchecked. Third, the authority and credibility which the publication possess, or claims to possess: see eg Wain at [61] to [62] (article in a financial paper of international repute, written by the president of a major news organisation), and Hoser at [218] (alleged contemnor set himself up to be a person of eminence in the investigation of corruption). Finally, there is the fact that judges in Singapore are the sole arbiters of fact and law in cases coming before the courts (Wain).
[53] Thirdly, I would reiterate the law is not concerned with the effect of the impugned publication on the judge hearing the application to commit; it looks to the potential effect on public confidence in the administration of justice. If a judge finds that an impugned publication poses a real risk of undermining public confidence in the administration of justice, the publication is prima facie in contempt even though the judge might personally take a more liberal view of its contents. If a judge finds that the impugned publication does not pose any real risk of undermining public confidence, he must decline to commit, even though he is personally outraged by the contents. Similarly, the law is not concerned with the subjective intentions or opinions of the author. The issue at all times is the actual or potential effect on public confidence.
[54] Fourthly, the requirement for a real risk, while very wide, is not illusory. One example is the hypothetical found in Hertzberg: 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. Another illustration can be found in the facts of Ex p A-G; Re Goodwin (1969) 70 SR (NSW) 413, where a letter circulated by a disappointed litigant to the Attorney-General of New South Wales and 13 Registrars of the district courts was found to be in contempt. I am in no position to assess the situation in Australia or New South Wales. But I am very certain that, should the same letter be circulated to the Attorney-General, or the Registry of the Supreme Court or the subordinate courts, it will not pose the slightest risk of undermining public confidence in the administration of justice. In fact, I should say from personal experience that such letters are not infrequently received by the Registry of the Supreme Court, and copied to holders of high public office such as the Attorney-General, ministers, and permanent secretaries, but the Attorney-General has not, quite correctly in my view, seen fit to take action against them in the law of contempt.
Mens rea
[55] There was no dispute that the only mens rea which is needed at common law is that the publication is intentional; and that it is not necessary to prove an intention to undermine public confidence in the administration of justice. If authority is needed it can be found in Radio Avon at 232–234; Ahnee at 307; A-G New South Wales v Mundey [1972] 2 NSWLR 887 at 911–2.
Constitutional considerations
[56] Mr Ravi also argued that Article 14 of the Constitution compels me to adopt the “real risk” test. Article 14 provides in material part as follows:
[57] Article 14 does not define contempt, and neither does Parliament – s 7(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) merely provides for the power of the High Court and the Court of Appeal to punish for contempt, and does not define the offence. The offence therefore falls, by necessary implication, to be defined by the courts. But that does not mean that the courts – or Parliament, should it take up the issue – have unlimited scope in defining the offence. They must do so consistently with the words, structure and spirit of Article 14, which clearly demand some kind of balance to be struck between the freedom of speech, which is the rule, and the offence of contempt, an exception to the rule. At the very minimum, neither can be defined in such a way that renders the other otiose.
[58] With respect, despite some references to constitutional authorities in other jurisdictions, Mr Ravi did not distinctly address me on how Article 14 compels the adoption of the real risk test. In the absence of properly focussed argument, and also in the light of the fact that I have concluded that the real risk test urged by Mr Ravi should be adopted at common law, I must decline to enter into constitutional exposition. It is sufficient for me to note that Mr Ravi has not argued that an offence of scandalising the court is inherently 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: see Wong Yeung Ng, per Mortimer V-P at [32]–[59]; per Mayo JA at [79]–[97]; per Leong JA at [107]–[117]; Ahnee at 305–306; S-G v Smith [2004] 2 NZLR 540 at 568; and Nationwide News Proprietary Ltd v Wills (1992) 177 CLR 1.
Defences
[59] I now consider the available defences. Ms Subramanian took the position that the defences in defamation of justification and fair comment are not available in contempt, relying in this regard on Wain, Chee Soon Juan and Hertzberg. She submitted that fair criticism was the only available defence. As for Mr Ravi, he appeared at some points to suggest that the impugned statements in the book were justified. In his final set of written submissions, however, he acknowledged that justification was not an available defence to scandalising the court and that the relevant defence was that of fair criticism. However, Mr Ravi did argue that fair criticism was a broader defence than justification. He also argued that the rejection of fair comment as a defence was merely semantic given the acceptance of fair criticism, implying that both defences are similar. In the circumstances, it is just as well that I examine the defences of justification, fair comment, and fair criticism, bearing in mind that, even at common law, the protection of public confidence in the administration of justice has to be balanced against the freedom of speech.
[60] 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 for the following reasons:
[61] In Hertzberg, the court likewise distinguished defamation and contempt:
The court went on to cite the passages in Chee Soon Juan quoted above, and concluded that “[t]he law of defamation and the law of contempt are distinct in principle and in purpose. They should not be regarded as though they were one and the same.”
[62] The applicability of justification and fair comment has also been considered by other jurisdictions. In A-G v Blomfield (1914) 33 NZLR 545, relied upon by Lai J in Chee Soon Juan, Williams J held at 563 that “[t]he court does not sit to try the conduct of the Judge.” However, in the later decision of Radio Avon, the New Zealand Court of Appeal alluded to the possibility of applying the defences of justification and fair comment, without reaching a conclusion.
[63] In R v Nicholls (1911) 12 CLR 280, Griffith CJ, delivering the judgment of the High Court of Australia, stated at 286 that:
[64] In Nationwide News Pty Ltd v Wills, Mason CJ said at [12] of his judgment that “[s]o long as the defendant is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, he or she is immune.” Likewise, Brennan J said at [5] of his judgment that:
[65] In Ahnee at 306, the Privy Council rejected the notion that an imputation of bias is necessarily contemptuous, and agreed with the suggestion in R v Nicholls that there might be a defence analogous to fair comment in such situations:
[66] In the United Kingdom, the Committee on Contempt of Court, chaired by Phillimore LJ, considered in its Report (Cmnd 5794) (HMSO, 1997) that justification should be a defence when it is for the public benefit:
[67] I cannot accept, as a matter of basic principle, that a court would regard as contemptuous a statement of fact which is true; in fact, I would say that it is very much in the public interest that judicial impropriety should be brought to light. At the same time, I see considerable force in the Phillimore Committee’s argument that an application for committal is not the right place to try an allegation of judicial error or impropriety, and that recognising a bare defence of justification would allow mala fide defendants a further and public forum to repeat their contempt. In particular, such defendants may engage in vexatious and abusive attempts to subpoena witnesses or obtain discovery in order to justify their contempt after the fact. I do not see, however, how the possibility of such abuses is addressed by imposing an additional requirement of public benefit, as proposed by the Phillimore Committee and suggested in the Australian cases.
[68] I also cannot agree with the suggestion made by the Phillimore Committee and Chee Soon Juan, and taken up by Ms Subramanian, that all discussions of judicial wrongdoing must be directed to the Prime Minister or the Chief Justice, with the aim of activating the removal mechanism provided for in Article 98(3) of the Constitution. The public must be able to debate judicial conduct without seising the removal mechanism in Article 98(3). Indeed, frequent resort to the extraordinary mechanism in Article 98(3) cannot be healthy for the independence of the judiciary.
[69] As for fair comment, I agree with Chee Soon Juan and Hertzberg that the defence cannot be directly imported into contempt. The defence of fair comment balances the public interest in unrestricted discussion on matters of public importance and the private interest of the defamed person in his or her reputation. By contrast, in the offence of scandalising the court, the interest countervailing to free speech, as indicated by the majority in Gallagher v Durack at 243, is quite different:
In the light of this difference in underlying rationales, it would be inappropriate to import wholesale the defence of fair comment into the law of contempt. That said, it may well be that there is in the final analysis some functional similarity between fair comment and fair criticism.
[70] I turn now to fair criticism. The law in this regard has been ably addressed by Prakash J in Tan Liang Joo. Prakash J accepted at [14] that “[f]air criticism does not amount to contempt of court”, approving in this regard Lord Atkin’s speech in Ambard at 335 (Prakash J referred to the All England Reports). Prakash J went on to elaborate the ambit of fair criticism as follows:
I am in complete agreement with the above passages. Prakash J then referred to and criticised the apparent English position that the acts or words in question must not impute improper motives to or impugn the integrity, propriety and impartiality of judges or the courts:
[71] In this last regard, Tan Liang Joo is at odds with Hertzberg, which took the position at [54] that criticism directed at the impartiality of the courts or which imputes improper motives to the judges can never constitute fair criticism.
[72] I would elaborate on the defence of fair criticism as follows. First, there should be some objective basis, whether in fact or in argument, for the allegation made. Unless it is founded on notorious facts, the objective basis must be stated together with the criticism, so that those who view the publication can evaluate its merits. It is not necessary to establish an unassailable basis for the criticism made against it or even a basis which is objectively more reasonable than not. The reason, and I should emphasise this, is because a court, in deciding whether the defence of fair criticism is made out, is not required or concerned to determine whether the criticism was proved or disproved as a fact. In my view, it is sufficient for the defendant to give some rational basis for the criticisms he makes. However, the cogency of the rational basis required to support the allegation would increase correspondingly with the seriousness of the allegation made. This is consistent with the approach in other areas of law, eg the proving of an allegation of fraud or dishonesty in civil cases. It is further justified by the fact that, the more serious the allegation made, the greater the risk it poses to public confidence in the administration of justice, all other things being equal. The seriousness of the allegation would depend on its contents, the most serious being those allegations which strike at the core of the judicial duty: the impartial administration of justice without fear or favour. The seriousness of the criticism also depends on the authority which the critic possesses or claims to possess – if a critic puts himself forward as an expert, or having done exhaustive research, and so on, in criticising the court, he will, quite naturally, be held to the higher standard which he has claimed. For example, a financial paper of international repute (Wain), or a person who claims to be an eminent investigator of corruption (Hoser), would be expected to supply a correspondingly cogent basis for the criticisms which they make. At the same time, it must be remembered that what is needed at the end of the day is not proof of the criticism, merely some rational basis for it. A censorious attitude must be eschewed.
[73] Second, the allegation should be made in good faith. This means that the person must genuinely believe in the truth of the criticism he made. There is no public interest in protecting criticism which the defendant knew or believed to be false at the time of making it. Likewise if the defendant acts in reckless disregard of the truth or falsehood of his criticism. A key consideration in assessing good faith, so defined, is whether the publication presented such a selective, distorted or patently false view of the facts that it goes beyond wrong-headedness and evinces a reckless disregard of the truth, or even outright dishonesty. An essential part of good faith, so defined, is that the rational basis cited in defence of a criticism against the court must be known to the defendant when the criticism is made. This means that the defendant who seeks to establish a factual basis for his criticism only during the application for committal does so in vain – if he does not know the basis for making the criticism when he made it, then he would have been acting in bad faith, in which case the defence of fair criticism would not avail him. Separately, if the defendant is shown to have acted in good faith, in the sense of having a genuine belief in the truth of the criticism he makes, then his purpose in making the criticism will not matter.
[74] I pause here to note that the first two requirements mean that a person in possession of facts supporting his criticism and who genuinely believes in the truth of his criticism will be able to raise a defence to contempt. This substantially obviates the need for justification as a defence and, in the light of the difficulties associated with such a defence, I agree entirely with the earlier decisions of our courts which declined to recognise it.
[75] Third, the requirement for respectfulness must be tempered by the realisation that the law in this area applies to everyone and not just those who are bound by the rules of court decorum. The man in the street is as entitled to criticise the courts as the learned professors in the universities, and it would not be reasonable to expect every person to adopt the refined language of scholarly discourse or court address. In my view, the court should not penalise criticism which, though expressed (to use Lord Atkin’s term) in outspoken language, is otherwise made in good faith and has some objective basis in fact or reason. However, abusive, intemperate or outrageous language should be eschewed, not least because an escalation of the language used in criticism may convey a more serious criticism, for which a more cogent basis would be required. It is, for example, one thing to say that a judge has handed down a harsh and oppressive sentence without regard to sentencing precedents, and quite another to say that he was actually biased against the accused. Also, to the extent that trenchant criticisms are made without some rational basis, they may for that reason fall outside of fair criticism.
[76] Fourth, I am in agreement with the tentative view in Tan Liang Joo that there should no limit to the kind of criticisms which can be made against the court subject to the above three criteria being met. I should specifically say that, while allegations of partiality and corruption are gravely insulting to judges, for they strike at the very core of the court’s constitutional duty, there is no reason in principle why a person who genuinely believes that the court is partial and corrupt and has a rational basis for this belief should not be able to say so without fear of being held in contempt. An example is given in Ahnee of a judge who engages in patently biased questioning of witnesses. In fact, there is a powerful public interest, which 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. In the judicial context, V K Rajah JA has recently declared that “[a] culture of openness has long since taken firm root in our courts, with mistakes being acknowledged openly rather than being papered over”: Tan Lai Kiat v PP [2010] 3 SLR 1042 at [63]. And, as Prakash J opined in Tan Liang Joo, we cannot be so complacent as to assume that judges would be infallible or impervious to human sentiment. At the same time, it should be emphasised that, the more serious the criticism made, the more cogent must be the arguments and facts cited in support of it.
Conclusion on the law
[77] In summary, under the law as I understand it, the public and constitutional interest in ensuring public confidence in the administration of justice is given robust protection. All publications posing real risks of undermining public confidence are prima facie in contempt of court. Only de minimis, remote and fanciful risks are excluded. Any greater risk, including that of a “small likelihood”, is caught, although if the risk is not great there might be a light sentence or none at all. At the same time, there is a defence of fair criticism, in the terms which I have set out. Any risk posed to public confidence as a result of fair criticism is justified. It is only in the extreme situation, where a person criticises without any rational basis, or without genuine belief in the truth of his criticism, that he will be caught by the law of contempt. In the light of the importance of ensuring public confidence in the administration of justice, this can hardly be considered an excessive restriction of the freedom of speech. I recognise that the burden would lie on the defendant to show that he was acting within his right of fair criticism. But it is unlikely that cases in this area would turn on the burden of proof, and in the event that they do the benefit of the doubt will of course be given to the defendant. In any case, the ingredients of the defence of fair criticism are in their nature matters within the knowledge of the defendant, who is therefore not unduly burdened in exercising his right to free speech. In my view, this approach strikes an adequate balance between the freedom of speech and the countervailing constitutional interest in ensuring that public confidence in the administration of justice does not falter as a result of scandalous publications. The court, for its part, is not required to pass on the truth or falsehood of the criticism levelled against it. A finding that fair criticism applies simply vindicates the respondent’s right of free speech.
Application to the facts
[78] I turn now to the facts. The application for committal reads in material part:
The O 52 r 2(2) statement states in material part:
It then refers to 14 statements from the book.
[79] Mr Ravi objected to the Attorney-General’s caveats in using the words “without being exhaustive” and “including” when referring to the 14 statements). I agree: the O 52 r 2(2) statement is exhaustive, by virtue of O 52 r 5(3), unless the court gives leave otherwise. Ms Subramanian quite rightly confirmed that the Attorney-General was only proceeding on the 14 statements in its O 52 r 2(2) statement. But it is of course permissible to have regard to the statements in the context of the book, and indeed both parties provided the court with a copy of the book and situated their arguments in the context of the book.
[80] The O 52 r 2(2) statement also referred to the affidavit of Ms Kumarassamy Gunavathy, a senior analyst with the Media Authority of Singapore.
[81] When this matter first came up for hearing on 30 July 2010, Mr Shadrake applied and was given leave to file an affidavit in reply. Mr Ravi also asked for leave to file affidavits by third parties. At that time, Mr Ravi could not specify who they were, but suggested tentatively that they could include the German government, the International Bar Association and “other agencies”. I ruled that Mr Ravi could apply for leave when he ascertained the third parties who were prepared to file affidavits on behalf of Mr Shadrake. Mr Shadrake filed an affidavit on 13 August, but his responses were not referenced properly to the 14 statements impugned by the Attorney-General and there was no response to one of the 14 statements. This was pointed out at a pre-trial conference on 25 August. I gave Mr Shadrake leave to amend and re-file his affidavit. I also asked Mr Ravi if Mr Shadrake wished to adduce any other affidavit evidence. Mr Ravi said no. I also asked parties to inform me whether there would be cross-examination at the next pre-trial conference, on 21 September. There Ms Subramanian indicated that the Attorney-General did not require any cross-examination. Mr Ravi informed me that he was undecided, but eventually confirmed by a letter dated 01 October 2010 that he would not be applying to cross-examine the Attorney-General’s deponents.
[82] When the application was finally heard, Mr Shadrake did not choose to exercise his right under O 52 r 5(4) to give oral evidence on his own behalf. As such, the hearing proceeded on the basis of the affidavits filed by both sides.
[83] I turn now to examine the facts. I will first lay down the context as regards the publication and availability of the book and Mr Shadrake’s claims of being an investigative journalist. I will then individually examine 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. I will then determine whether some or all of the 14 statements, contextually considered, pose 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.
Context
[84] Ms Gunavathy deposed that she bought two copies of the book from Kinokuniya Book Store of Singapore Pte Ltd at the Takashimaya shopping centre in Ngee Ann City. She verily believes that the book has been sold in Singapore by several bookstores, including Kinokuniya Book Store of Singapore Pte Ltd, Select Books Pte Ltd and Mary Martin Book Sellers Pte Ltd. As Mr Ravi stated that cross-examination was not necessary, the contents Ms Gunavathy’s affidavit must be taken as accepted. Mr Ravi further informed the court that almost 6,000 copies of the book have been sold internationally, especially at airports, and that some copies are being circulated in Singapore. On these bases, I am satisfied that the book has a not insignificant range of distribution. Also, Mr Shadrake’s authorship of the book is not disputed.
[85] Mr Shadrake has held himself out as an investigative journalist. For example, in the preface to the book, Mr Shadrake wrote as follows at pp vii-viii:
Mr Shadrake then refers to his sources, which according to him include unnamed lawyers, two unnamed officers of the Central Narcotics Bureau, and an anonymous librarian who helped him delve into archived records at the National Library. It is therefore plain from all this that Mr Shadrake is putting the book forward as a product of his investigative journalism, and indeed he describes himself as an investigative journalist with a long career at p 21 of the book. At p 26, he says:
Also, anyone who picks up the book will readily see on the back cover of the book the following description:
and a bibliographical note:
The statements made in the book must therefore be scrutinised in this light. Mr Ravi had argued that Mr Shadrake should be held to the standard of a layperson. This is misconceived. The statements should be read, as they would be read by members of the public, as coming from a person who has held himself out to be an investigative journalist.
[86] In this regard, I see as rather telling the fact that, notwithstanding Mr Shadrake’s claims of being an investigative journalist who embarked on a “meticulous search of legal files and archived cases going back to 1963 while interviewing abolitionists and lawyers involved in many sensational cases that went largely under-reported or not reported at all”, he did not produce any evidence of his investigations during the hearing. The documentary evidence he annexed to his affidavit comprised:
(a) excerpts from the autobiography of Mr Subhas Anandan, a local criminal lawyer (“Mr Anandan’s autobiography”);
(b) the January 2004 report by Amnesty International entitled “Singapore – The death penalty: A hidden toll of executions” (“Amnesty International’s report”);
(c) a dated article by Ross Worthington “Between Hermes and Themis: An Empirical Study of the Contemporary Judiciary in Singapore” (2001) 28(4) Journal of Law and Society 490;
(d) the Chief Justice’s article referred to at [17] above, but this was published after Mr Shadrake wrote his book;
(e) a transcript of the audio recording of an interview he did with Mr Subhas Anandan on Vignes Mourthi’s case (discussed below); and
(f) the July 2008 report of the Human Rights Institute of the International Bar Association, entitled “Prosperity versus individual rights? Human rights, democracy and the rule of law in Singapore” (“the IBA report”).
His affidavit does not refer to any other material. For example, for the 1 statement, he says: “In coming to this conclusion I relied on the information in the book written by Singapore’s top criminal lawyer Mr Subhas Anandan.” For the 2 statement, he says: “The evidence I relied upon can again be found in Mr Anandan’s book.” Such was the extent, or rather the limit, of the evidence of his investigative journalism that he produced to the court.
The 1 statement
[87] I turn now to the statements. The 1 statement, at p viii of the book, reads:
Mr Shadrake argued in his affidavit that the 1 statement is meant to refer to the abuse of prosecutorial discretion, and that it could not have been directed at the courts, which in the cases he discusses are bound by the mandatory death penalty. Mr Ravi submitted further that “legal system” is not meant to include the judiciary, but refers to the prosecution, the legislature and the executive.
[88] I cannot accept these explanations. I cannot see how “legal system” can be naturally read to include everything but the courts. The plain and ordinary meaning of “system” is something which comprises several components or parts that make up an organised whole. One does not, when referring to a system, mean everything but one of its components. If anything. the courts are the first thing that comes to mind when a reference is made to a country’s legal system. I am also unable to accept that courts have no role to play when faced with persons accused of crimes which carry the mandatory death penalty. The courts do not impose the death penalty at the instance of the prosecution; they do so after being satisfied beyond reasonable doubt of the guilt of the accused person according to law. Therefore, in making the first statement, Mr Shadrake is clearly accusing the courts (as well as other parts of the legal system) of taking politics, international trade and business into account in determining who lives and who dies on the gallows.
The 2 statement
[89] The 2 statement, at p 3 of the book, refers to the case of Julia Bohl, a German national who was arrested and initially charged with the capital offence of trafficking more than 500 grams of cannabis, which was subsequently reduced to a non-capital offence of trafficking in a smaller amount:
The 2 statement alleges that the Singapore government arranged for a light sentence (“only five years”) for a known drug trafficker, who was “running a lucrative drugs ring in Singapore”, under threat of economic reprisals by the home government of the trafficker. Mr Shadrake sought to present the 2 statement as a criticism of the prosecution for succumbing to diplomatic pressure. This is plainly untenable given his reference to the fact that the sentence of “only five years” was a “slap on the wrist arranged by the Singapore government”. Sentencing is generally and in this case the province of the courts, and the 2 statement clearly alleges that the sentence of Bohl by the courts was procured by the Singapore government under the threat of economic reprisals by the German government. No rational basis was provided for this allegation, which cannot therefore constitute fair criticism.
[90] Mr Shadrake’s proffered explanation for the 2 statement, which I have rejected, is revealing of his attitude towards his sources. The source he cites for his explanation is Mr Anandan’s autobiography, at p 142, which reads as follows:
On the basis of Mr Anandan’s autobiography, which Mr Shadrake relied on, the prosecution could not have preferred a capital charge, because the amount of cannabis seized was below the threshold of 500 grams. There was no discretion involved whatsoever, contrary to Mr Shadrake’s insinuation in his explanation that the government preferred the lighter charge.
[91] Though irrelevant to his guilt or innocence in the present case, I should observe that, for all his claims to be an activist against the death penalty, Mr Shadrake appears willing to assert that Bohl was guilty of a capital offence without much in the way of proof.
The 3 statement
[92] The 3 statement, at p 27 of the book, reads as follows:
“It” refers to the case of Ngyuen Tuong Van, an Australian citizen who was convicted of drug trafficking and sentenced to death.
[93] Mr Shadrake explained in his affidavit that his intention in making the 3 statement was to criticise the laws passed by Parliament which in his view repressed free discussion of the death penalty, including limitations on the right to assemble, which he referred to in the paragraph just before the one where the 3 statement is found. His reference to “legal system” should therefore be read accordingly.
[94] Once again, I find it difficult to read the reference to the system as excluding the courts. But I do find that the 3 statement does not unambiguously refer to the courts, or to any judicial act or function, in contrast to the 1 statement which refers to the imposition of the death sentence. I therefore give Mr Shadrake the benefit of the doubt that the 3 statement does not specifically refer to the courts.
The 4 statement
[95] The 4 statement, at p 100 of the book, refers to the case of Maria Krol-Hmelak, who, together with one Peter Johnson, was acquitted of drug trafficking by the late Lai Kew Chai J. The 4 statement (in bold) reads:
[96] These two paragraphs are set out in full because Mr Shadrake says in his affidavit that if we read the paragraphs together, it will be seen that he distinguishes foreign pressure and negotiations with the executive during the prosecutorial stage as opposed to the judicial sentencing stage where judges have no discretion to mitigate as the death penalty is mandatory. He also referred to Mr Anandan’s autobiography at p 143 and asserted again that diplomatic pressure occurs at the prosecutorial stage. Hence, he says, the use of the phrase “on the way to the courtrooms.” Mr Shadrake’s misguided reference to Mr Anandan’s autobiography has already been referred to above.

The judgment continues past this page. Read the rest at eLitigation.

Attorney-General v Shadrake Alan

Laws this judgment relies on

Grounds of decision

Introduction

The Law: Generally

The rationale for the law and its relation with the freedom of speech

Which courts are covered

Actus reus: Real risk or inherent tendency

Mens rea

Constitutional considerations

Defences

Conclusion on the law

Application to the facts

Context

The 1 statement

The 2 statement

The 3 statement

The 4 statement