Attorney-General v Tan Liang Joo John and Others

[1] These were applications by the Attorney-General (“the Applicant”) seeking orders of committal against Tan Liang Joo John (“the First Respondent”), Isrizal bin Mohamed Isa (“the Second Respondent”) and Muhammad Shafi’ie Syahmi bin Sariman (“the Third Respondent”) (collectively “the Respondents”) for contempt of court. Orders for the applications to be tried at the same time were made by a Senior Assistant Registrar on 29 October 2008.

[2] The ground upon which the applications against the Respondents were made was that they had scandalised the Singapore judiciary in the following manner:

(a) in respect of all the Respondents, by publicly wearing a white T-shirt, imprinted with a palm-sized picture of a kangaroo dressed in a judge’s gown (I shall refer to this as the “contemning T-shirt”), within and in the vicinity of the Supreme Court on 26 May 2008, when a hearing (the “assessment of damages hearing”) was being held before Justice Belinda Ang in Court No 4B of the Supreme Court for the assessment of damages payable by Chee Soon Juan, Chee Siok Chin and the Singapore Democratic Party to Minister Mentor Lee Kuan Yew and Prime Minister Lee Hsien Loong in defamation actions instituted by the Minister Mentor and the Prime Minister (in Suit No 262 of 2006 and Suit No 261 of 2006 respectively);

(b) additionally, in respect of the First Respondent only:

(1) by publicly wearing the contemning T-shirt within and in the vicinity of the Supreme Court on 27 May 2008, during the continuation of the assessment of damages hearing; and

(2) by pointing to the picture of the kangaroo on the contemning T-shirt and saying, “This is a kangaroo court”, to Minister Mentor Lee Kuan Yew when the latter walked past him outside Court No 4B of the Supreme Court on 26 May 2008; and

(c) by posting, or acquiescing in the posting of, an article entitled “Police question activists over kangaroo T-shirts” which appeared on the Singapore Democratic Party (“SDP”) website on 27 July 2008 (“the SDP article”), which article was accompanied by a photograph of the Respondents wearing the contemning T-shirts and standing outside the main entrance of the Supreme Court building (“the photograph of the Respondents”).

[3] The Applicant contended that the Respondents had engaged in a deliberate and calculated attempt to scandalise the Singapore judiciary by stigmatising it as a kangaroo court which, according to Black’s Law Dictionary (Brian A Garner ed, West Publishing, 8 Ed, 2004 at 382), is:

[4] The Applicant had originally relied on identical affidavits in support of the applications against all the Respondents. The Second Respondent applied by way of Summons No 4761 of 2008 to strike out the affidavits or parts thereof on the basis that those parts did not pertain to his conduct and were irrelevant. In the hearing before me on 4 November 2008, the Applicant contended that there appeared to be an intention linking all the incidents from 26 to 27 May 2008 and the posting of the SDP article on the SDP website. Thus, the entire chain of events had to be put before the court in order for me to determine the precise extent of the Second Respondent’s culpability. I granted the Second Respondent’s application in large part. Since the applications against the Respondents were to be tried at the same time, the evidence of the entire chain of events would be before me. The Second Respondent should, however, only have to answer for his own actions, not the actions of others, and thus only evidence relating to his conduct was admissible in the application against him. I bore this in mind in arriving at the sentences of each of the Respondents.

[5] On 24 November 2008, I found each of the Respondents liable for the contempt of scandalising the court. After hearing the parties’ submissions on sentence on 27 November 2008, I sentenced the First Respondent to 15 days in prison and the Second and Third Respondents to seven days in prison each. I now give the reasons for my decision.

[6] The First Respondent submitted that his wearing of the contemning T-shirt was an act of fair criticism and self-expression, done in the hope that the Singapore judiciary would “improve from strength to strength”. He also argued that when he had first turned up at the Supreme Court on 26 May 2008 wearing the contemning T-shirt, he had not been told by the security personnel that the T-shirt was objectionable. The First Respondent contended that he had never intended that the photograph of the Respondents should be widely circulated. Rather, the photograph was wanted for private commemoration or remembrance and it would never have been circulated had it not been for reportage by the Straits Times. He admitted that he had access and some editorial say in the SDP website, but stated that the SDP had only posted the SDP article and the photograph of the Respondents after the police started investigating the Respondents’ alleged contempt. The purpose of the posting was to provide information on the investigations to the public. The First Respondent also denied telling the Minister Mentor that the picture on his T-shirt was of a kangaroo court.

[7] The Second Respondent submitted that he had had no intention to commit any contempt or scandalise the Singapore judiciary. He had only changed into the contemning T-shirt on 26 May 2008 in reaction to an incident between him and the police officers at the Supreme Court while he was in the queue during lunchtime (ie, the decision to do so was neither wholly rational nor calculated). He too argued that he had not been warned on 26 May 2008 that wearing the contemning T-shirt would amount to contempt of court. The Second Respondent submitted that the image on the T-shirt could be interpreted in various ways and thus it was not proven beyond reasonable doubt that it amounted to contempt of court in the manner asserted by the Applicant. His position was that the contemning T-shirt in fact depicted a dressed wallaby.

[8] Counsel for the Third Respondent conceded the liability of his client. Thus, I will deal with his submissions when I discuss the Respondents’ sentences below.

[9] The jurisdiction of the Singapore court to punish for contempt is given statutory effect by s 7(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), which provides that: “The High Court and the Court of Appeal shall have power to punish for contempt of court.” It is settled law in Singapore that it is a contempt of court to scandalise a court or judge (see Attorney-General v Pang Cheng Lian [1972-74] SLR 658 at 661; Attorney-General v Wong Hong Toy [1982-1983] SLR 398 at 403; Attorney-General v Zimmerman [1984-85] SLR 814 at 817; Attorney-General v Wain (No 1) [1991] SLR 383 at 394, 397; Attorney-General v Lingle [1995] 1 SLR 696 at 700; Attorney-General v Chee Soon Juan [2006] 2 SLR 650 at 658; and, more recently, Lee Hsien Loong v Singapore Democratic Party [2008] SGHC 173 at [168]).

[10] The classic exposition of the law which has now been accepted as part of our law (see, for example, AG v Wain (No 1) at 394) is found in R v Gray [1900] 2 QB 36, in which Lord Russell of Killowen stated (at 40):

[11] The raison d’etre for the offence of scandalising the court (and indeed contempt of court in general) is the preservation of public confidence in the administration of justice (see AG v Wong Hong Toy at 403; Lee Hsien Loong v Singapore Democratic Party at [169]–[170]). This has been recognised by courts throughout the Commonwealth. The High Court of Australia, for example, stated in Gallagher v Durack (1983) 45 ALR 53 at 55:

[12] To establish contempt the law does not require that a complainant prove that the act or words created a real risk of prejudicing the administration of justice. It is sufficient for the claimant to prove beyond reasonable doubt that the act or words complained of had the inherent tendency to interfere with the administration of justice (AG v Chee Soon Juan at [31]; AG v Wain (No 1) at 397; Attorney-General v Hertzberg Daniel [2008] SGHC 218 (“AG v Hertzberg Daniel”) at [34]). An act or statement has such an inherent tendency if it would convey to an average reasonable reader or viewer allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge (and, a fortiori, a court) in the exercise of his judicial function (AG v Hertzberg Daniel at [31]), in the circumstances that obtained at the time of the act or words (AG v Wain (No 1) at 399).

[13] It follows that, although Lord Killowen referred to an act which is “calculated” to bring a court into contempt, the intention of the alleged contemnor is irrelevant in establishing liability for the contempt (Lee Hsien Loong v Singapore Democratic Party at [221]; AG v Chee Soon Juan at [31]; AG v Wain (No 1) at 395). Intention becomes relevant only when the court determines the appropriate sentence (AG v Wain (No 1) at 395; AG v Lingle at 701).

[14] Fair criticism does not amount to contempt of court. In an oft-cited passage from Ambard v Attorney-General of Trinidad and Tobago [1936] 1 All ER 704 (“Ambard”), Lord Atkin elaborated that (at 709):

[15] It is apparent from Lord Atkin’s reasoning, however, that there are limits to the right of fair criticism. The criticism must be made in good faith and must also be respectful. In determining whether mala fides has been proved, the court can take into account a wide range of factors.

[16] One relevant factor is the extent to which the allegedly fair criticism is supported by argument and evidence. There must be some reason or basis for the criticism or else it would amount to an unsupported attack on the court. In the early English decision of R v White (1808) 1 Camp 359n, Gross J decided that the censure of a judge and jury in an article constituted contempt of court because:

[17] As Lord Russell of Killowen stated in R v Gray (at 40):

[18] Another relevant factor is the manner in which the alleged criticism is made. The criticism must generally be expressed in a temperate and dispassionate manner, since an intention to vilify the courts is easily inferred where outrageous and abusive language is used (see Borrie & Lowe: The Law of Contempt (Nigel Lowe & Brenda Sufrin, Butterworths, 3rd Ed, 1996 (“Borrie & Lowe”) at p 349). Lord Atkin stipulated that fair criticism needs to be “respectful” (see Ambard). In R v Police Commissioner of the Metropolis, Ex parte Blackburn (No. 2) [1968] 2 WLR 1204 (at 1207), Salmon LJ stated that “no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith”. Similarly, in Halsbury’s Laws of England Vol 9(1) (Butterworths, 4 Ed Reissue, 1998) it is said that (para 433):

[19] Such temperate, balanced criticism allows for rational debate about the issues raised and thus may even contribute to the improvement and strengthening of the administration of justice. Scurrilous and preposterous attacks, on the other hand, are likely to have the opposite effect. As Mortimer VP noted in Wong Yeung Ng v Secretary for Justice [1999] 2 HKC 24 (“Wong Yeung Ng”) (at 44):

[20] Apart from the two factors discussed above, courts have also taken into consideration such factors as the party’s attitude in court (see, for example, R v Vidal (1922) Times, 14 October, cited in Borrie & Lowe at p 349 n 15) and the number of instances of contemning conduct (see, for example, R v Glanzer (1963) 38 DLR (2d) 402). The list of relevant factors is not closed. The court is entitled to take into account all the circumstances of the case which in its view go towards showing bad faith.

[21] There is another, more contentious, limit on the right of criticism. It appears from the English authorities above that the act or words in question must not impute improper motives to nor impugn the integrity, propriety and impartiality of judges or the courts (see, for example, Ambard; Halsbury’s Laws of England; see also Borrie & Lowe at pp 350–352). The rationale for this second limit is explained in Borrie & Lowe as follows (at pp 350–51):

[22] The need to maintain public confidence in the administration of justice must, however, be balanced against the public interest in rooting out bias and impropriety where it in fact occurs. We ought not to be so complacent as to assume that judges and courts are infallible or impervious to human sentiment. Thus, I have some sympathy for the view expressed in the New Zealand case of Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (at 231):

[23] The fear of baseless imputations of bias or impropriety is unfounded as the court is able to take into account factors such as the existence of evidence for such allegations under the requirement of bona fides. To my mind, therefore, the second limit on the right to criticise is unnecessary and potentially overly restrictive of legitimate criticism.

[24] Applying the law to the facts of the cases before me, I shall deal first with the Second Respondent’s submission that the contemning T-shirt could be interpreted in various ways. Given the entire context in which the T-shirt had been worn (viz, in and around the Supreme Court, at the same time as the assessment of damages hearing related to Suit No 262 of 2006 and Suit No 261 of 2006), I concluded that a reasonable viewer would apprehend that it was a reference to the expression “kangaroo court” and intended to cast aspersions on the way in which the assessment of damages hearing was being conducted in particular and the Singapore justice system in general. This was especially since the Second Respondent could not give any satisfactory explanation why he put on the T-shirt depicting (as he claimed) a dressed wallaby. He merely gave the vague explanation that it was a reaction to the police officers wanting to inspect the T-shirt when he arrived at the Supreme Court on 26 May 2008.

[25] The First Respondent did not deny that he had worn the contemning T-shirt within and in the vicinity of the Supreme Court on 26 May 2008 (as well as in its vicinity on 27 May 2008) and that he had distributed similar T-shirts inside the Supreme Court on 26 May 2008. He also admitted that he had some editorial say in the SDP website, and did not deny being in some way involved in the posting of the SDP article and the photograph of the Respondents on the SDP website. Instead, he claimed that these acts were done in the spirit of fair criticism. I did not agree with him. No reasons accompanied the assertion (by the image on the T-shirt) that the court was a kangaroo court. Far from expressing his criticism in a temperate manner, the First Respondent had chosen to make a statement by wearing the T-shirt and, even worse, inciting others to wear it within the court’s premises. This amounted to a deliberate and provocative attack on the court, falling far outside the realm of fair and reasoned criticism.

[26] The Second Respondent also did not deny wearing the T-shirt within and in the vicinity of the Supreme Court on 26 May 2008. Instead, he asserted that he had had no intention to scandalise the Singapore judiciary. However, as I have set out above, intention is irrelevant in establishing liability for the contempt. Furthermore, the Second Respondent’s assertion that he had had no intention to scandalise the Singapore judiciary was doubtful in the light of his subsequent refusal to apologise for his acts on the basis that it would go against his conscience.

[27] The First and Second Respondents tried to blame others for their acts. The question of whether the Straits Times should be held liable for circulating the photograph of the Respondents was, however, irrelevant to the question of the Respondents’ liability. The element of publication is only necessary for establishing defamation. Contemning conduct can take many forms. Although the offence of scandalising the court is commonly committed by publication in a print medium (see for example, AG v Pang Cheng Lian; AG v Wain (No 1); AG v Lingle) or broadcast on television or radio (Solicitor-General v Radio Avon Ltd (cited in [22] above) and Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48), pictures have been held to scandalise the court (Attorney-General v Blomfield (1914) 33 NZLR 545), as have physical acts (You Xin v Public Prosecutor [2007] 4 SLR 17 (“You Xin”)), spoken words (Secretary for Justice v Choy Bing Wing [2005–06] 11 HKPLR 480 (“Choy Bing Wing”) (although combined with written words in that case) and words displayed on a poster (R v Vidal (1922) Times, 14 October, cited in Borrie & Lowe at p 340 n 12). It was also irrelevant for the First and Second Respondents to argue that the police officers at the Supreme Court had not told them that the T-shirt was objectionable. The police officers were under no duty to warn them that they were potentially committing a contempt of court.

[28] A powerful and evocative image has as much inherent power as a written article to shake public confidence in our justice system. Images can convey messages and meaning by implication and association. In fact, images can sometimes have an impact that the spoken or written word will not (Mafart v Television New Zealand Ltd [2006] 3 NZLR 534 at [69]; see also Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2) (1992) 108 ALR 577 at the text to n 137). However, in the present case, the Respondents’ actions were as eloquent as the image on the contemning T-shirt. The Respondents had posed for the photograph of the Respondents at a location where it was obvious that they would be seen by and photographed by the press (not to mention that the First Respondent had distributed the contemning T-shirts within the Supreme Court and was also involved in the posting of the SDP article on the SDP website). It was clear to me that this case was about much more than merely wearing a T-shirt. The conduct of the Respondents communicated to an average member of the public the Respondents’ conviction that the Singapore courts are “kangaroo courts” as defined in [3] above.

[29] I have already mentioned that the counsel for the Third Respondent had conceded that his client was liable for scandalising the court. For the sake of accuracy and completeness, I note that counsel for the Third Respondent had also raised the arguments that the Third Respondent was merely engaging in fair criticism, that the Straits Times should be held responsible for publishing the photograph of the Respondents and that the Respondents had merely posed for the photograph for private remembrance and commemoration. I have already discussed these arguments and my views apply equally to the Third Respondent. In particular, the argument that the Respondents posed for the photograph of themselves for private remembrance and commemoration rang hollow since counsel for the Third Respondent was unable to satisfactorily explain what exactly they were commemorating.

[30] For all these reasons, I found that the First Respondent was in contempt of court by wearing the contemning T-shirt within and in the vicinity of the Supreme Court on 26 May 2008 (as well as in its vicinity on 27 May 2008), distributing similar T-shirts in the Supreme Court on 26 May 2008, and being involved in or acquiescing in the posting of the SDP article and the photograph of the Respondents on the SDP website. I also found that the Second and Third Respondents were in contempt of court by wearing the T-shirt within and in the vicinity of the Supreme Court on 26 May 2008.

[31] The penalty for contempt of court can take the form of either a fine or imprisonment and there is no limit on the amount of the fine or duration of imprisonment (AG v Chee Soon Juan at [57]; Lee Hsien Loong v Singapore Democratic Party at [179]). In reaching a decision on the sentence, I bore in mind that “[t]he object of imposing the penalty for the offence of scandalising the court is to ensure that the unwarranted statements made by the contemnor about the court or the judge are repelled and not repeated” (Gallagher v Durack at 57). The relevant factors for consideration include: the nature and gravity of the contempt; the seriousness of the occasion on which the contempt was committed; the importance of deterring would-be contemnors from following suit; and the culpability of the contemnor (see Lee Hsien Loong v Singapore Democratic Party at [179]–[180] and [222]). Fines as the penalty for scandalising the court are no longer the norm (AG v Chee Soon Juan at [61]). The appropriate sentence can only be determined by looking at the particular facts of each case (Soong Hee Sin v PP [2001] 2 SLR 253).

[32] In AG v Chee Soon Juan, the respondent had read out a statement at the hearing of a bankruptcy petition against him, in which he alleged, inter alia, that the Singapore judiciary was biased and unfair. Noting that the contemptuous statement had actually been read before the court and the respondent’s lack of contrition or any attempt to withdraw his offending remarks, Lai J held that the respondent’s conduct amounted to “sheer, unmitigated contempt” sufficient to warrant a sentence of imprisonment. She sentenced the respondent to one day’s jail and a $6,000 fine, with seven days’ jail in default. The respondent chose not to pay the fine and had to serve a sentence of eight days’ imprisonment in total.

[33] In You Xin (cited in [27] above), the contemnor had disrupted Subordinate Court proceedings by chanting (together with a few others) with her back to the court despite being asked by the district judge to stop. The High Court declined to revise the sentence of two days’ imprisonment passed by the court below.

[34] During the recent case of Lee Hsien Loong v Singapore Democratic Party, the contemnors had disregarded and disobeyed the court’s directions to desist from asking irrelevant questions during cross-examination of the plaintiffs’ witnesses in an assessment of damages hearing. Furthermore, they had made scurrilous and unfounded remarks attacking the impartiality of the court, which I need not repeat here (see Lee Hsien Loong v Singapore Democratic Party at Annexes A and B). Sentences of 12 days’ imprisonment and 10 days’ imprisonment respectively were imposed on the two contemnors.

[35] Terms of imprisonment have also been imposed in other jurisdictions for the offence of scandalising the court. In Gallagher v Durack, a union leader’s appeal against a conviction for contempt of court was allowed. Rather unwisely, he then gave a statement on television, saying that he believed that the main reason for the court allowing the appeal was that the rank and file of the union had walked off their jobs. The High Court of Australia found that this imputation that the court had bowed to outside pressure in reaching its decision was an imputation of “a grave breach of duty by the court” (Gallagher v Durack at 55). It also noted the union leader held an important office and was well-known to the Australian public (Gallagher v Durack at 56). Taking these factors into account, the High Court refused to grant leave to appeal against the sentence of three months’ imprisonment.

[36] In a recent decision of the Supreme Court of New South Wales, Re Bauskis (5 September 2006) (unreported), the contemnor had in defiance of a judge’s direction to leave, remained in court whilst wearing a T-shirt containing the words “Trial by jury is democracy”. He had also participated in shouting and verbal abuse against the judge when the judge refused to proceed by way of trial by jury. Noting that this amounted to “contumacious contempt, which occurs where the behaviour of the contemner has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice” (Re Bauskis at [5]) and that the contemnor had remained defiant throughout, the Supreme Court of New South Wales sentenced him to fourteen days’ imprisonment.

[37] It is also worth noting two earlier Hong Kong decisions. In Wong Yeung Ng, the contemning act was the publication of a series of abusive and scurrilous articles which expressed the view that the Oriental Press Group (a group of companies which published the popular Oriental Daily News newspaper in Hong Kong) was the target of a biased judiciary pursuing a conspiracy of political persecution started under the former colonial government. Noting the relatively small size of Hong Kong’s population and the ease with which information spreads to a substantial portion of the population (per Mortimer VP at 44), as well as the sustained nature of the attack (per Mayo JA at 55 and Leong JA at 61), the Hong Kong Court of Appeal upheld the sentence of four months’ imprisonment. In Choy Bing Wing, the Court of First Instance sentenced the contemnor to six months’ imprisonment for making serious written and verbal accusations against a judge of bias and impropriety in an attempt to secure the judge’s recusal from hearing his appeal.

[38] The contemnors’ conduct in the cases before me was not as serious as that in Wong Yeung Ng and Choy Bing Wing but nevertheless was of a grave and serious nature. In determining the sentences, I took into account the following aggravating factors. First, the imputation that the Singapore courts are “kangaroo courts” was a serious and scurrilous insult that struck at the foundation, the body and the spirit of the justice system in Singapore. The message was that justice cannot be obtained in our courts and that our legal proceedings are a sham. This is the worst form of insult possible against a court system and merited a harsher punishment than was imposed in the cases of You Xin, AG v Chee Soon Juan and Lee Hsien Loong v Singapore Democratic Party. It was imperative that a clear message be sent to potential contemnors that such attacks on the judiciary are not acceptable.

[39] The respondents were deliberately unforthcoming on many of the circumstances surrounding their contemning acts. For example, the Second and Third Respondents did not give any clear account of how and why they came to wear the contemning T-shirts on 26 May 2008. Nor did the First and Third Respondents explain what exactly it was they had come to court to “commemorate” by wearing the contemning T-shirts. This lack of cooperation weighed against them in the determination of their sentences.

[40] Although I had given the Respondents the opportunity to apologise for their acts, they refused to apologise and demonstrated a lack of contrition in making reference to their “conscience” and “personal convictions”. I have already noted above that the Second Respondent’s declaration that he had to live by his conscience sat oddly, to say the least, with his earlier submission that he had had no intention to impugn the impartiality of the court. This bolstered my conclusion that he had been less than forthcoming with me.

[41] The First Respondent was particularly recalcitrant. His expositions on the futility of punishment showed a lack of repentance that aggravated the offence. For example, he stated in the course of making submissions on sentence:

Subsequently, he added (Notes of Evidence for 24 November 2008 at p 91):

[42] It has also been noted that the First Respondent had actively distributed the contemning T-shirts in the Supreme Court building. He was also involved in the posting of the SDP article on the SDP website. Thus, the First Respondent’s culpability was much greater than that of the Second and Third Respondents.

[43] There were no mitigating factors in favour of the Respondents. Counsel for the Third Respondent submitted that I should be lenient in my sentencing of the Third Respondent since he never intended for the image of the contemning T-shirt to be broadcast far and wide, and since Singapore is a civilised and educated country where people are able to form their own opinions as to the acts of the Respondents. Although I noted that the Third Respondent is a young man (he is still serving national service), he must have understood what was happening when the members of the press took photographs of them wearing the contemning T-shirts outside the Supreme Court. The question was not whether there was a real risk that Singaporeans would lose their confidence in the administration of justice, but whether the Respondents’ acts had the inherent tendency to undermine confidence in the administration of justice.

[44] The First and Second Respondents also pointed out that they had already lost employment by virtue of the proceedings against them but I thought this could not be a mitigating factor in their favour. Loss of employment will generally not be taken into account except in special cases (see for example, Knight v Public Prosecutor [1992] 1 SLR 720). Every person who faces court proceedings may potentially find his sources and flow of income threatened and if the court were to take this into account there would effectively have to be an automatic discount in sentences.

[45] The Respondents’ conduct amounted to contumacious contempt aimed at the integrity of the courts and was designed to degrade the administration of justice. Having considered all the circumstances, I came to the conclusion that a custodial sentence was appropriate.