Wham Kwok Han Jolovan v Attorney-General and other appeals [2020] SGCA 16

Introduction

These appeals arise out of HC/OS 510/2018 (“OS 510”) and HC/OS 537/2018 (“OS 537”), which were initiated by the Attorney-General (“the AG”) to punish Mr Wham Kwok Han Jolovan (“Wham”) and Mr Tan Liang Joo John (“Tan”) respectively for contempt by scandalising the court (“scandalising contempt”) under s 3(1)(a) of the Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“the AJPA”). The conduct alleged to constitute scandalising contempt pertained to Wham’s and Tan’s posts on their respective Facebook profiles.

We reserved judgment after the hearing on 22 January 2020, and now deliver the same dismissing Wham’s and Tan’s appeals in CA 99 and CA 108, dismissing the AG’s appeal in CA 110, and allowing in part the AG’s appeal in CA 109.

As Wham and Tan are the first persons to be prosecuted under s 3(1)(a) of the AJPA, we take the opportunity in this judgment to address a number of points pertaining to how certain aspects of the AJPA are to be understood and applied. Before turning to that, we begin with the facts.

The facts

On 27 April 2018 at around 6.30pm, Wham published a post on his Facebook profile (“Wham’s post”) containing the following statement:

Wham’s post also included a link to an online article titled “Malaysiakini mounts constitutional challenge against Anti-Fake News Act”. Wham published his post under the “Public” setting of Facebook’s audience selector. According to information on Facebook’s online Help Centre, sharing a post under this setting means that “anyone including people off of Facebook can see it”.

On 30 April 2018, the AG filed OS 510 seeking leave to apply for an order of committal against Wham for scandalising contempt under s 3(1)(a) of the AJPA.

On 6 May 2018 at around 11.05am, Tan published a post on his Facebook profile (“Tan’s post”) containing the following statement:

Tan’s reference to “what [Wham] said” was a reference to what Wham had said in his post. Tan’s post also contained a link to Wham’s Facebook profile. Like Wham, Tan published his post under the “Public” setting of Facebook’s audience selector.

On 7 May 2018, the AG filed OS 537 seeking leave to apply for an order of committal against Tan for scandalising contempt under s 3(1)(a) of the AJPA.

On 9 May 2018, the Judge granted both applications for leave. On 10 May 2018, Wham published the following post on his Facebook profile (Wham’s “10 May 2018 post”):

On 11 May 2018, the AG filed HC/SUM 2196/2018 (in OS 510) and HC/SUM 2192/2018 (in OS 537) for Wham and Tan respectively to be punished for scandalising contempt. The Judge heard these summonses on 17 July 2018.

On 8 October 2018, Wham published the following post on his Facebook profile (Wham’s “8 October 2018 post”):

Wham and Tan were convicted of scandalising contempt on 9 October 2018. On the same day, Wham published the following post on his Facebook profile (Wham’s “9 October 2018 post”):

On 8 January 2020, Wham published the following post on his Facebook profile (Wham’s “8 January 2020 post”):

On 20 January 2020, two days before the hearing of the present appeals, Wham published a further post on his Facebook profile (Wham’s “20 January 2020 post”) as follows:

All of Wham’s posts referred to above remain online to date.

For completeness, we note that on 16 July 2019, after his conviction and sentencing in OS 537, Tan applied by way of HC/OS 911/2019 for a declaration under O 15 r 16 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) that he was eligible to stand for election as a Member of Parliament pursuant to Art 44(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) notwithstanding his conviction for scandalising contempt and his sentence of a $5,000 fine (with one week’s imprisonment in default). Aedit Abdullah J declined to grant the declaration on the basis that scandalising contempt was a form of criminal contempt, and quasi-criminal offences such as criminal contempt fell within the meaning of “offence” in the disqualification provision set out in Art 45(1)(e) of the Constitution: see Tan Liang Joo John v Attorney-General [2019] SGHC 263.

The decision below

Liability for scandalising contempt

It was not disputed before the Judge that for scandalising contempt under s 3(1)(a) of the AJPA to be made out, it had to be proved beyond a reasonable doubt that the alleged contemnor had the mens rea (meaning that he had intended to publish the contemptuous matter or do the contemptuous act), had committed the actus reus and could not invoke fair criticism.

The Judge found that Wham had committed scandalising contempt. The mens rea requirement was satisfied as it was undisputed that Wham had intentionally published his post on his Facebook profile (Liability Judgment at [80]). The actus reus requirement was also satisfied. Wham’s post impugned the integrity and impartiality of Singapore’s judges and, thus, its courts. The Judge rejected Wham’s submission that what his post meant was that Singapore’s judges were independent when adjudicating cases with political implications, just that Malaysia’s judges were more independent (Liability Judgment at [86]–[89]). The Judge also found that there was a risk that public confidence in the administration of justice would be undermined by Wham’s post. The average reasonable person would interpret the post to mean that Singapore’s judges lacked complete independence when adjudicating cases with political implications and were thus not impartial. The post was published at a time when Wham had nearly 7,200 Facebook followers, some of whom were living in Singapore and might see updates from his Facebook profile in their news feeds. Moreover, since the post was published under the “Public” setting of Facebook’s audience selector, its audience was the public at large. It was immaterial that only 33 people had responded to the post because the number of responses (meaning “likes”) did not reveal anything about how many people had in fact read the post. What had to be shown was a risk of undermining public confidence in the administration of justice, and not that public confidence in this regard had in fact been undermined (Liability Judgment at [90]–[95]). Finally, Wham’s post was not published in good faith and did not constitute fair criticism (Liability Judgment at [96]–[104]).

The Judge found that Tan too had committed scandalising contempt. It was undisputed that Tan had intentionally published his post on his Facebook profile. Tan’s post impugned the integrity and impartiality of the Singapore courts as it was “intertwined with and repeat[ed] what Wham said in Wham’s post”, and the latter impugned the integrity and impartiality of the Singapore courts (Liability Judgment at [115]). Tan’s criticism of the AG for commencing proceedings against Wham was an additional attack over and above the attack on the Singapore courts. The average reasonable person would interpret Tan’s post to mean, first, that the allegation in Wham’s post that Singapore’s judges were not impartial when adjudicating cases with political implications was true, and, second, that the AG’s action against Wham in OS 510 confirmed this. The audience for Tan’s post was likewise the public at large since it was published under the “Public” setting of Facebook’s audience selector. There was therefore a risk that public confidence in the administration of justice would be undermined by Tan’s post regardless of how many people had in fact responded to it (Liability Judgment at [123]–[126]). Tan’s post was also not published in good faith and did not constitute fair criticism.

Sentence

Both Wham and the AG submitted that Au Wai Pang v Attorney-General [2016] 1 SLR 992 (“Au Wai Pang”) provided a useful reference point for sentencing as that case likewise concerned publication on the Internet. In Au Wai Pang, the contemnor was fined $8,000 for publishing a 16-paragraph article on his blog that attacked certain members of the Judiciary.

The AG submitted that the appropriate sentence for Wham was a fine ranging from $10,000 to $15,000, with two to three weeks’ imprisonment in default. In contrast, Wham submitted that the appropriate sentence was a fine ranging from $4,000 to $6,000, with one week’s imprisonment in default.

The Judge sentenced Wham to a fine of $5,000, with one week’s imprisonment in default. He found Wham’s conduct to be less egregious than that of the contemnor in Au Wai Pang. He also took into account: (a) the fact that Wham had submitted that he was a social activist, and that it was not Wham’s case that he had little influence through his Facebook profile; (b) Wham’s lack of remorse; and (c) Wham’s lack of antecedents. The Judge disagreed with the AG that the extent of dissemination of Wham’s post was further amplified by his 8 and 9 October 2018 posts (Sentencing Judgment at [30]–[39]).

The Judge sentenced Tan too to a fine of $5,000, with one week’s imprisonment in default (Sentencing Judgment at [88]–[116]). He considered that the custodial threshold had not been crossed, and that Tan’s sentence should be similar to Wham’s. While he thought that Tan was less culpable than Wham in this instance because his attack on the Singapore courts was less direct, he was also mindful of the fact that this was not Tan’s first conviction for scandalising contempt, although Tan’s prior conviction had been for a more egregious instance of scandalising contempt. Further, like Wham, Tan had not evinced any remorse. Finally, the Judge pointed out that while the AG and Tan had both sought a custodial sentence, the court was not bound to impose a custodial sentence simply because both sides submitted that this was appropriate (citing Stansilas Fabian Kester v Public Prosecutor [2017] 5 SLR 755 (“Stansilas”)).

The Remedies

The Judge declined to make an apology order in respect of Wham. He disagreed with the AG that the general approach should be to order a contemnor to publish an apology to purge his contempt if the contemnor was not willing to do so voluntarily. He also considered it premature to lay down, as a general rule, the circumstances under which an apology order should be made under s 12(3) of the AJPA because this was the first case involving scandalising contempt under s 3(1)(a) of the same. On the facts, the Judge held that it was unnecessary to order Wham to issue an apology, given that Wham’s refusal to apologise had already been taken into account in determining the appropriate sentence (Sentencing Judgment at [40]–[51]).

The Judge also declined to order a cease-publication injunction against Wham requiring him to remove his post. He rejected the AG’s argument that the court should, as a general rule, order a contemnor to remove his contemptuous publication to purge his contempt if he failed to do so voluntarily. Again, the Judge considered it premature to rule on the circumstances under which such an injunction should generally be issued. On the facts, he was satisfied that such an injunction was unnecessary. This was because Wham’s refusal to take down his post had already been considered in determining the appropriate sentence. Moreover, since Wham’s post had been published around a year before the date of his sentencing, it would have receded into the background on his Facebook profile (Sentencing Judgment at [52]–[60]).

As for Tan, the Judge held that it was unnecessary to issue an apology order against him, and that the question of ordering him to remove his post was moot because he had already done so (Sentencing Judgment at [117]–[118]).

The issues on appeal

CA 99 and CA 108 raise two questions: whether it has been established beyond a reasonable doubt that Wham and Tan are liable for scandalising contempt, and if so, what the appropriate sentences are for each of them. CA 109 and CA 110 raise the question of whether one or both of the Remedies should have been granted by the Judge.

Wham’s and Tan’s appeals in CA 99 and CA 108

Liability for scandalising contempt

Section 3(1)(a) of the AJPA provides:

The Judge referred to s 3(1)(a)(i) as the “first limb” and s 3(1)(a)(ii) as the “second limb” of this provision. We will adopt the same terminology in the analysis below.

The first limb

At the hearing before us, counsel for Wham and Tan, Mr Eugene Thuraisingam (“Mr Thuraisingam”), eventually conceded, rightly in our judgment, that the first limb was satisfied in respect of Wham’s post. Mr Thuraisingam accepted that Wham’s post was contemptuous because its objective interpretation was that the prospects of success in the Malaysian constitutional challenge referred to in the post were better in Malaysia than if the case were heard in Singapore because Malaysian judges were more likely, in cases with political implications, to decide on the basis of the merits of the case. In other words, Singapore judges would decide on the basis of something other than the merits of the case, and were therefore not independent. In our judgment, there is no other reasonable way to interpret or understand Wham’s post, and Mr Thuraisingam was not, in the circumstances, able to advance any viable alternative interpretation.

In Mr Thuraisingam’s written submissions, in line with the stance anticipated in Wham’s 20 January 2020 post, there was an argument that Wham’s post was doing no more than making a bare comparison of the independence of the two Judiciaries in question, without casting any aspersions on the independence of the Singapore Judiciary. In other words, an assertion that one Judiciary was less independent than another did not necessarily mean that the former was not objectively independent. Mr Thuraisingam wisely did not advance this contention in his oral arguments because it was patently untenable. Wham’s post was a commentary on how he thought a particular case would likely be decided differently in Malaysia compared to in Singapore because it was a case with political implications, and the irresistible conclusion to be drawn is that Wham was saying that the Singapore Judiciary would decide such a case on the basis of something other than its merits. As we have noted, Mr Thuraisingam did accept this when it was put to him. An assertion that a Judiciary would decide matters otherwise than in accordance with the merits is self-evidently among the most serious attacks that one can make against courts and the administration of justice. It goes to the very heart and essence of the judicial mission and oath.

Given that Wham’s post is contemptuous, it is impossible to come to a different view on Tan’s post, which obviously affirms the allegation made in Wham’s post about the Singapore Judiciary’s lack of independence. It matters not that Tan’s post might have resulted from an outburst of anger or emotion at the time, or that it additionally attacked the AG on top of the Singapore Judiciary (as opposed to attacking the Singapore courts exclusively). None of that changes the analysis, which leads to the inescapable conclusion that Tan’s post too is contemptuous.

The second limb

Turning to the second limb, co-counsel for Wham, Mr Choo Zheng Xi (“Mr Choo”), submitted that the “risk” test embodied in this limb could not encompass a “remote” or “fanciful” risk. The latter formulation is taken from this court’s elucidation of the common law “real risk” test in Shadrake Alan v Attorney-General [2011] 3 SLR 778 (“Shadrake Alan (CA)”) (at [36]). Mr Choo also emphasised that the platform of publication should make all the difference, given that Wham’s and Tan’s posts had been published on their respective personal Facebook pages, which contained a “mix” of content of varying degrees of levity and gravity.

In our judgment, Parliament’s intention in replacing the common law “real risk” test with the “risk” test in the second limb was to introduce a test that could be applied more expediently and pragmatically. Parliament intended to pre-empt hair-splitting or fine distinctions as to the level of risk that had to be established in order to satisfy the test. This was part of a considered policy choice to come out strongly in favour of upholding and protecting the integrity and standing of the Judiciary.

The foregoing intention of Parliament may be gleaned from the Minister for Law’s speech at the second reading of the Bill that was later enacted as the AJPA. There, the rationale for moving away from the common law “real risk” formulation was explained as follows (see Singapore Parliamentary Debates, Official Report (15 August 2016) vol 94 (K Shanmugam, Minister for Law)):

Considering Parliament’s intention in formulating the second limb as it did, we do not think the proliferation of labels such as “remote”, “fanciful”, “illusory” or “imaginary” is ultimately helpful. It is clear to us that Parliament would not have legislated against risks that, in substance, are non-existent. However one might describe it, a risk may be seen as either objectively existent or objectively non-existent. A risk may be seen as objectively (as opposed to purely theoretically) existent if reasonable people would consider that it bears guarding against; conversely, a risk may be seen as objectively non-existent if reasonable people would not think it needs to be guarded against. We therefore consider that the application of the “risk” test under the second limb should simply be guided by this central question: Is the risk one that the reasonable person coming across the contemptuous statement would think needs guarding against so as to avoid undermining public confidence in the administration of justice? In answering this question, both the content and the context of the alleged contemptuous statement may be relevant. When we put this to counsel in the course of their arguments, Mr Choo and Mr Thuraisingam did not contend that this test was unsuitable, while Mr Mohamed Faizal SC, who appeared for the AG, accepted this as a correct formulation.

Turning then to Wham’s post, the reasonable person reading it would, in our judgment, conclude that it does pose a risk of undermining public confidence in the administration of justice. The content of this post objectively and plainly entails a direct attack on the independence and integrity of Singapore’s Judiciary. The question is whether a reasonable person coming across this post in these circumstances would conclude that there is a need to guard against the risk that public confidence in the administration of justice would be undermined as a result. This can only be answered affirmatively. The post was published on Wham’s Facebook page under the “Public” setting and was thus accessible to the world at large (not to mention directly to Wham’s 7,000-odd followers on Facebook). Wham also held himself out as a commentator of sorts on social affairs and someone who is knowledgeable on such matters. While Wham denied this in his affidavit dated 14 June 2018 (“Wham’s affidavit”), he in fact intimated in his 8 January 2020 post that he would be “sharing a little on the history of the law [he had] been convicted under, the legal arguments that have been put forth, and why this law is unconstitutional” (see [15] above). This belies his claim that he did not regard or present himself as being knowledgeable in this respect. Mr Choo also accepted at the hearing of these appeals that Wham’s post was not intended to be “tongue in cheek”. In sum, Wham was using his personal Facebook page as a platform from which to broadcast his view – namely, that Singapore judges are not independent when hearing cases with political implications – and having regard to his conduct and his manner of posting, it is clear that he intended his post to be taken seriously. This analysis is not in the least bit affected by the fact that the assertion made in that post is false. There is also no basis at all for thinking that just because the post was published on a Facebook page, that fact made it so fanciful or self-evidently unreliable that no risk of undermining public confidence in the administration of justice arose. Wham himself did not contend that his post was never intended to be taken seriously, or that he had put it on his Facebook page so that it would not be taken seriously.

Likewise, the reasonable person reading Tan’s post, which essentially affirmed Wham’s post even though it also contained additional allegations against the AG, would conclude that it poses a risk of undermining public confidence in the administration of justice. What we have said about Wham’s post would largely apply to Tan’s post as well. Further, Tan’s post could be seen in the news feeds of his 352 Facebook followers and 2,597 Facebook friends (these being the numbers as at 7 May 2018, the date on which OS 537 was filed against Tan), and was similarly published on his Facebook page under the “Public” setting and, hence, accessible to the world at large.

Fair criticism

We agree with the Judge that fair criticism is not made out in respect of either Wham’s post or Tan’s post since there is no objective or rational basis for both these posts.

Wham claimed that his post was informed by his “knowledge of at least three specific case examples where the Malaysian judiciary had adopted a less conservative approach (against the government) than their counterparts in Singapore”. These cases (“the Case Pairs”) are: (a) the Malaysian Court of Appeal’s decision in Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014] 4 MLJ 157 (“Nik Nazmi”) and the Singapore High Court’s decision in Chee Siok Chin and others v Minister for Home Affairs and another [2006] 1 SLR(R) 582 (“Chee Siok Chin”); (b) the Malaysian Court of Appeal’s decision in YB Teresa Kok Suh Sim v Menteri Dalam Negeri, Malaysia, YB Dato’ Seri Syed Hamid bin Syed Jaafar Albar & Ors [2016] 6 MLJ 352 (“YB Teresa”) and this court’s decision in Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 525 (“Chng Suan Tze”); and (c) the Federal Court of Malaysia’s decision in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (“Semenyih”) and the Singapore High Court’s decision in Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112 (“Nagaenthran”).

Preliminarily, it is unclear if Wham maintains this argument, which is directed at his conviction, as part of his arguments on fair criticism (it has not been suggested to us that Tan is relying on the Case Pairs to argue that his post constituted fair criticism). Nonetheless, it is convenient to deal briefly with this point here since Wham does raise it subsequently in any event in relation to his sentence. Wham contends that the Judge did not consider the “highly mitigating” factor that his post was “largely based on [his] misunderstanding of … the comparability of three pairs of Malaysia and Singapore cases”.

We note, first, that it is by no means evident that Wham in fact had the Case Pairs in mind when he prepared his post. The post does not refer to any of the facts or materials that he later cited (including the Case Pairs), which suggests that he belatedly referred to those materials as an afterthought in an effort to bolster his case. Moreover, as the AG pointed out, Wham equivocated between whether he had actually read the Case Pairs or whether he had only read about them, and even on which case(s) he was relying on. Wham initially relied on Nagaenthran. But when the AG argued at the committal hearing before the Judge that this was impossible because that decision was only delivered a week after Wham’s post was published, Wham’s counsel then pointed to another judgment, Prabagaran a/l Srivijayan v Public Prosecutor and other matters [2017] 1 SLR 173, even though that case did not match the description in Wham’s affidavit of the case that he had supposedly relied on.

Even assuming that Wham had indeed based his view on the Case Pairs, in our judgment, his post would not constitute fair criticism (and, a fortiori, would not be a mitigating factor in sentencing). We observe that in so far as Wham asserts that the Case Pairs are comparable, it is incumbent on him to explain how exactly that is the case. He failed to do so in his affidavit, and instead simply stated the following:

(a) In relation to Nik Nazmi and Chee Siok Chin:

(b) In relation to YB Teresa and Chng Suan Tze:

(c) In relation to Semenyih and a Singapore High Court case which was not identified in his affidavit:

Such bare and conclusory assertions do nothing to advance Wham’s case on fair criticism.

Further, we concur with the Judge’s analysis at [100]–[102] of the Liability Judgment as to why the Case Pairs are not comparable. For convenience, we reproduce below that part of his analysis:

The point that emerges from this analysis is that there is in fact nothing in the Case Pairs that could reasonably lead one to come to the conclusion that Singapore judges, unlike their Malaysian counterparts, are prone to deciding cases with political implications otherwise than in accordance with their merits. That, after all, is the essence of what Wham said about the Singapore Judiciary in his post. In order to show that this comment constituted fair criticism, Wham must, at the minimum, prove that there was at least an objective basis upon which it was reasonably put forward. When one considers the basis put forward by Wham, as the Judge did, it wholly fails to meet this threshold.

Accordingly, we affirm Wham’s and Tan’s convictions for scandalising contempt under s 3(1)(a) of the AJPA.

Sentence for scandalising contempt

We turn now to the issue of sentence. Under s 12(1)(a) of the AJPA, contemnors liable for contempt of court under (amongst other provisions) s 3(1)(a) of the AJPA may be punished with a fine of up to $100,000, or with a term of imprisonment of up to three years, or with both. The factors that the court may consider in deciding on the sentence for scandalising contempt at common law (see Shadrake Alan (CA) ([35] supra) at [147]) remain relevant under s 12(1)(a) of the AJPA.

Wham’s sentence

Mr Thuraisingam, in his written submissions, argued that Wham’s sentence of a $5,000 fine, with one week’s imprisonment in default, was manifestly excessive, and that the Judge failed to consider several “highly mitigating” factors. First, the AG had not applied to cross-examine Wham on his affidavit evidence that he had never intended to do anything amounting to scandalising contempt. Second, on the day Wham received notice that leave had been granted for an order of committal to be made against him (that is, on 10 May 2018), Wham published his 10 May 2018 post (see [10] above) explaining what he had been trying to convey in his post of 27 April 2018. Therefore, even if the latter post were contemptuous, Wham had “expeditiously and publicly qualified or corrected it”, and this “achieve[d] the same effect as a retraction”. Third, it was emphasised that Wham was “a layperson with no legal education or background”. His falling afoul of contempt laws arose from his “misunderstanding of court judgments dealing with complex issues of administrative and constitutional law”.

We do not accept these contentions, and instead affirm Wham’s sentence of a $5,000 fine, with one week’s imprisonment in default. Wham’s assertion that he subjectively did not intend to scandalise the court is ultimately irrelevant. His post was a statement that the Singapore Judiciary is not independent; or, at least, that it is less independent than another country’s Judiciary in dealing with cases with political implications, and is prone to deciding such cases otherwise than in accordance with their merits. In this light, his contention that he never subjectively intended to denigrate the Singapore Judiciary is belied by the fact that his counsel, when asked directly whether his post meant anything other than what we have set out here, accepted that it did not (see [32] above). As we have already explained, the statement made in Wham’s post is among the most serious aspersions that one can cast upon a Judiciary. Wham plainly intended to make that statement and to have it taken seriously. He stood by it, repeated it on several occasions and declined to retract or apologise for it. Moreover, he tried to defend that statement by purportedly comparing some cases which, as we have explained above at [47], were neither legally nor factually comparable. Further, Wham’s 10 May 2018 post has no mitigating value for the following reasons. It was not a retraction of Wham’s post, but a purported explanation that the view expressed in that post was based on several Malaysian cases and a book. Thus, its real effect was not to withdraw, retract or even qualify the original attack in Wham’s post, but to attempt to justify it. It also repeated, unnecessarily in our view, the contents of Wham’s post. In this regard, we also find it relevant that the tenor and contents of Wham’s subsequent posts, particular those published on 8 and 20 January 2020, were all of the same ilk. Finally, the fact that Wham is not legally trained is not a mitigating factor. If Wham did indeed truly misunderstand the comparability of the Case Pairs because of his lack of legal training, then the highest at which his case can be put is that he made a bald and outrageous assertion without reference to any supporting facts. But even this is implausible, given his refusal to apologise even after taking legal advice. Further, his counsel in these appeals has admitted that his post was contemptuous. There is nothing to suggest that any other competent counsel advising Wham at the time would have taken or did take a different view on this point.

Tan’s sentence

We turn then to deal with the relevance of Tan’s potential disqualification from standing in the next General Election if a fine of $2,000 or more were to be imposed on him. Article 45 of the Constitution provides:

We were not pointed to any precedents where the nature of the sentence was changed from a fine to imprisonment after taking into account the offender’s desire to run for electoral office (and the relevance of his potential disqualification from doing so if a particular type of sentence were to be imposed). In considering whether any weight should be given to this factor, we must therefore turn to first principles.

The starting point is that the court’s task in sentencing is to mete out the appropriate punishment, having regard to the gravity of the offence, the culpability of the offender and the offender-specific aggravating and mitigating factors. Against this background, Tan’s argument runs contrary to principle in two respects.

First, Tan is seeking a harsher sentence than what would be regarded as appropriate. Imprisonment is generally regarded as a more severe punishment than payment of a fine, as is manifest from the fact that the custodial threshold is crossed only for more egregious instances of an offence (see, for instance, Public Prosecutor v Koh Thiam Huat [2017] 4 SLR 1099 at [63] in relation to the offence of dangerous driving under s 64(1) of the Road Traffic Act (Cap 276, 2004 Rev Ed), and Public Prosecutor v Lim Yee Hua and another appeal [2018] 3 SLR 1106 in relation to the offence of road rage violence under s 323 of the Penal Code (Cap 224, 2008 Rev Ed)). There is some precedent for a court imposing a term of imprisonment where a fine would otherwise be appropriate. That is where it is unambiguously clear that the offender is not able to pay a fine and would end up facing a default term of imprisonment (which may be even longer than a specific and intended sentence of imprisonment). In such circumstances, the court should recognise the reality that the offender will inevitably be imprisoned and calibrate the appropriate term of imprisonment from that perspective, instead of from the perspective of an imprisonment term being a penalty for defaulting on payment of a fine. As the High Court stated in Low Meng Chay v Public Prosecutor [1993] 1 SLR(R) 46 (“Low Meng Chay”) at [13]:

The considerations in Low Meng Chay simply do not apply in Tan’s case. Low Meng Chay involved a situation where the offender was demonstrably unable to pay a fine, such that he would incur a default imprisonment term in any event. There is no suggestion before us that Tan is unable to pay a fine – instead, it is simply that he would prefer not to be visited with a fine (to be more precise, with a fine of $2,000 or more) because that could interfere with his aspirations to stand for election as a Member of Parliament.

Once that is grasped, the reasoning in Stansilas ([26] supra) at [110]–[111], where the offender sought – unsuccessfully – to argue for a sentence of a fine instead of imprisonment for the offence of drink driving, becomes apposite:

Although Stansilas was concerned with professional or contractual consequences whereas Tan professes to wish to run for public office, we do not consider this to be a relevant distinction. In short, we do not think that different standards apply to offenders engaged in private employment as opposed to those in or seeking public office. As a matter of principle, it cannot be the case that the law would treat, say, a military officer who faces dismissal for being sentenced to a term of imprisonment (as was the case in Stansilas) differently from and less favourably than an actual or aspiring Member of Parliament who might face disqualification for being sentenced to a fine of $2,000 or more rather than to a term of imprisonment of less than one year.

It is also apposite to note that although the AG’s position in the proceedings below was that a custodial sentence should be imposed on Tan (see [25] above), at the hearing before us, the AG clarified that in so far as a fine of $2,000 or more might be alleged to have political implications or repercussions for Tan, the AG was indifferent to whether a fine or an imprisonment term was imposed. What the AG objected to was Tan’s submission that he be sentenced to an imprisonment term rather than to a fine in order to suit his own purposes. This objection was not directed at the substantive outcome (that is, the sentencing outcome of imprisonment in lieu of a fine), but was instead founded on the principle that an offender should not be allowed to choose a particular sentence on account of his political aspirations. This objection is well-founded. In Public Prosecutor v Koh Wen Jie Boaz [2016] 1 SLR 334, it was observed, in the context of sentencing a youthful offender, that the offender should not be “place[d] in the position where he is able to simply pick and choose the terms on which he would like to be rehabilitated” (at [64]). While CA 108 (Tan’s appeal) does not involve a youthful offender or the relevant statutory regime governing the sentencing of such offenders, the same principle applies – Tan should not be allowed to pick and choose the sentence that best suits his own purposes (here, to fulfil his political aspirations).

Second, Tan’s potential inability to run for electoral office if he were sentenced to a fine of $2,000 or more would be relevant (if at all) as an overriding public interest consideration rather than as a mitigating factor per se. As the High Court explained in Public Prosecutor v Tan Fook Sum [1999] 1 SLR(R) 1022 at [21] in the context of discussing the applicable principles for determining which of several available sentencing options was the appropriate punishment and whether any of those options should be combined (citing Tan Yock Lin, Criminal Procedure (Butterworths Asia, 1997) ch VXIII at para 852), the type of sentence to be imposed in a given case is to be determined by the public interest to be protected:

On this basis, Tan might argue here that it would be in the public interest to promote the democratic process by avoiding a sentence that could result in his being barred from running for public office. For convenient reference, we term this the “Democratic Process Argument”. Put another way, the Democratic Process Argument rests on the proposition that there would be negative repercussions for the public and the State if there were fewer candidates eligible to run for public office.

In our judgment, the Democratic Process Argument does not advance Tan’s case very far because what constitutes the public good or public interest is an amorphous concept. Parliament has separately legislated for the conditions that would disqualify a candidate from standing for election as a Member of Parliament, and on this basis, the starting point is that the public interest is served when candidates are allowed to stand for election only if they are not disqualified under Art 45 of the Constitution. This is because the qualifying conditions set out in Art 44 and the accompanying disqualifications enumerated in Art 45 serve the purpose of sieving out candidates who were deemed by the drafters of the Constitution to be unsuitable to be Members of Parliament. There is also a public interest in ensuring that the law is applied fairly and equally without regard to whether or not an offender has political aspirations.

In the final analysis, Tan’s argument, which is that he is, in effect, volunteering to take on an apparently harsher sentence in order to avoid being disqualified from standing for election as a Member of Parliament, is flawed for two reasons. First, Parliament has enacted a series of disqualifying conditions for aspiring Members of Parliament, and it would bring the Judiciary and the administration of justice into disrepute if we were to impose sentences with an eye towards the political process. After all, a court that chooses to impose an inappropriate sentence in order to avoid disqualifying a candidate from standing for election as a Member of Parliament could just as easily do the same thing to achieve the opposite end. In truth, both outcomes are equally abhorrent and impermissible. This leads to our second point, which is that the only guide for a sentencing court is that it must strive to impose a condign sentence. Ironically, it seems that Tan is inviting us to do the very thing that he and Wham have improperly accused the Judiciary of, namely, to decide his appeal in CA 108 otherwise than in accordance with its merits. We do not condone and will not do that.

For these reasons, we hold that Tan’s potential disqualification from standing in the next General Election, for five years from the date on which the fine meted out by the Judge was imposed unless he obtains a presidential pardon (see Art 45(2) of the Constitution), is not a relevant factor in sentencing. We therefore affirm the Judge’s imposition of a fine of $5,000, with one week’s imprisonment in default.

Costs

(a) Wham and Tan had not disputed the mens rea of the offence;

(b) the three affidavits filed in the course of the proceedings below were relatively short; and

(c) some of the work done for Wham’s and Tan’s respective cases overlapped.

We are not persuaded by the AG’s line of argument regarding the civil nature of committal proceedings, given that such proceedings are very much criminal in nature. In keeping with this, in Li Shengwu v The Attorney-General [2019] SGCA 20, this court held that the modern law of contempt does not purport to attach such weight to the classification of civil and criminal contempt as would justify their different juridical treatment (at [82]). The differences between the two categories of contempt have considerably narrowed to the point that they are virtually indistinguishable in three material aspects: (a) the process by which committal proceedings for both categories of contempt are initiated; (b) the applicable standard of proof in both civil and criminal contempt; and (c) the penal consequences that apply to both civil and criminal contempt (at [59]–[61]).

The AG’s appeals in CA 109 and CA 110

The apology order

We turn to the AG’s appeals in CA 109 and CA 110. The AG sought an apology order, submitting that this would address the risk posed to public confidence in the Judiciary and the rule of law by: (a) securing an acknowledgement of wrongdoing from the contemnor; (b) signalling to the public that a wrong had been committed and that the contemnor had to change his behaviour (which would help to deter future contemnors); and (c) counteracting the effect of the contemptuous conduct in the public sphere. It was said that an apology order would serve the corrective and educative purposes that advanced the aims of prohibiting scandalising contempt. Indeed, the AG submitted, because the purpose of an apology order was to signal that a wrong had been committed, the starting point in scandalising contempt cases should be to order the contemnor to apologise if he refused to do so voluntarily (“the Presumptive Approach”).

The AG further submitted that the Judge erred in relying on the reasons that he gave for refusing to make an apology order against Wham. Just because the lack of an apology had already been taken into account in sentencing, this did not, in and of itself, render an apology order redundant. The relevance of a voluntary apology in the context of sentencing was to assess whether the offender was remorseful. The relevance of a mandated apology, on the other hand, was to signal the contemnor’s wrongdoing. Moreover, contrary to the Judge’s view, it would not be meaningless to compel an unwilling contemnor to apologise. Compulsion was only made necessary by the offender’s intransigence, but if the contemnor’s unwillingness to apologise would preclude an apology from being ordered, then logically, there would never be a case for ordering one. Yet, the AG contended, Parliament surely did not legislate in vain, and it had provided the courts with the power to make an apology order.

It was argued on behalf of Wham and Tan, on the other hand, that the Judge correctly exercised his discretion not to order them to publish an apology. In support of this argument, Wham and Tan essentially relied on the reasons that the Judge gave.

Apologies have been granted as remedies in various contexts, including in defamation cases and anti-discrimination litigation (regarding the latter, see Gijs van Dijck, “The Ordered Apology” (2014) 37 Oxford Journal of Legal Studies 562 (“van Dijck”) at 563). Apologies may serve some or all of these purposes:

(a) Signalling, educative or corrective: An apology may signal a wrong or reprehensibility to the public, which is informed about the fact that the wrongdoer had to change his behaviour. In some cases, this may lead to the affirmation or redefinition of social norms (van Dijck at 574).

(b) Rehabilitative: “Compelled apologies could create opportunities for the sort of moral reflection that triggers personal transformation – or at least a kind of behavior modification – and thereby reduces recidivism” (Nick Smith, “Against Court-Ordered Apologies” (2013) 16 New Criminal Law Review 1 (“Smith”) at 27).

(c) Retributive: This refers to “the inherent value of humiliation as a counterweight on the scales of justice … [offenders] deserve to suffer the negative emotions associated with [apology] rituals” [emphasis in original omitted] (Smith at 9).

(d) Deterrence: An ordered apology may serve both specific and general deterrence, presumably because of the unpleasant experience of having to apologise and increased public consciousness of this (Smith at 37; van Dijck at 574).

We agree with the AG that an apology order under the AJPA may primarily serve signalling, educative and corrective functions, although we accept that retribution and deterrence may also be relevant depending on the circumstances of the case and whether the sentence is seen from the viewpoint only of the contemnor or also of the wider public (see further [76] below). However, we disagree that the Presumptive Approach is the correct one. The importance of the signalling function of an apology order does not justify adopting this approach simply because it is not in every case that a signal needs to be sent to the public. Indeed, in our judgment, the inflexibility of this approach would unnecessarily restrict the court’s discretion to choose from the range of available remedies. Moreover, an insincere apology made under compulsion can have the opposite effect of diminishing the standing of the Judiciary.

In our judgment, a mandated apology should only be considered in exceptional circumstances, where the content of the contempt and the conduct of the contemnor are so egregious that the imposition of the ordinary punishments (meaning a fine and/or imprisonment) does not suffice. In such cases, even the insincerity underlying a court-ordered apology might be eclipsed by the sentencing considerations of retribution and deterrence (see above at [74(c)] and [74(d)]). Wham’s and Tan’s cases do not fall within this category, and we consider that the sentences meted out by the Judge on them are sufficient, leaving aside the question of whether a cease-publication injunction should be granted. The latter engages concerns different from those listed at [74] above, which we turn now to address.

The cease-publication injunction

At the hearing before us, Mr Thuraisingam accepted that there was no reason not to grant an order that Wham was not to repeat the contemptuous statement contained in his post. But, he submitted, that was different from a takedown order, which would be an attempt to “erase history”. This was unnecessary given that old Facebook posts would “fade away”, as the Judge observed. Further, the fact that the AG did not seek to take down Wham’s post earlier amounted to a concession that there was no imminent harm.

Although the AG framed the relief sought as a simple cease-publication injunction, we observe that depending on whether or not the publication in question is a continuing one, a cease-publication injunction may operate differently. If the publication is not a continuing one, a cease-publication injunction would simply require the contemnor to desist from future publication and this would suffice. Conversely, if the publication is a continuing or ongoing one, a cease-publication injunction may also entail a directive to take down the offending publication.

Having regard to the nature of Facebook posts, we are satisfied that Wham’s post is a continuing publication. Material continues to be published for the entire time that it remains available on the Internet. As long as a Facebook post is not taken down, it can be continually disseminated (such as when any person “likes”, “shares” or comments on it) in the sense of actively resurfacing in the news feed of another individual. This is because the algorithm that produces an individual’s news feed is sensitive to the activity of his Facebook friends and his “followed” persons or pages. As explained in a printout from Facebook exhibited in Wham’s affidavit:

We note that Wham’s 8 October 2018 post garnered 170 reactions, 22 comments and 62 “shares” on Facebook in five days, and his 9 October 2018 post, 227 reactions, 32 comments and 72 “shares” in four days. The 9 October 2018 post also “tagged” Tan in the post, meaning that it would appear again on Tan’s Facebook page as well. Wham’s 8 January 2020 post garnered 135 reactions, 22 comments and 15 “shares” on Facebook in nine days, and his 20 January 2020 post, 82 reactions, 9 comments and 14 “shares” in two days.

In our judgment, there is generally no justification for permitting the continued existence or posting of a statement that has already been found to be contemptuous. Accordingly, the issue in each case is whether there are good reasons to favour the status quo and leave the contemptuous statement in existence. The court should consider all the relevant circumstances in this regard, including, for instance:

(a) the technical feasibility of removing the contemptuous statement; and

(b) whether the contemptuous statement has already faded from the public consciousness, such that the issuance of a cease-publication injunction would only breathe new life into a falsehood that has in truth died a natural death.

Conclusion

For the foregoing reasons, we dismiss Wham’s and Tan’s appeals in CA 99 and CA 108, dismiss the AG’s appeal in CA 110, and allow in part the AG’s appeal in CA 109 in so far as we grant a cease-publication injunction in respect of Wham.