This is a diary of the case in which the Attorney-General’s Chambers accused me of “scandalising the judiciary”, to make it easier for friends to follow what’s going on. As with court cases, the technical details can sometimes be hard to grasp; I will try to make it digestible here. Since this has a diary format, from time to time, I will be adding to this, unlike other essays on this site which generally are finished by publication date.
Scroll down for the latest updates.
1. Monday, 25 November 2013
Around 9 or 10pm, I check my email and see a request by Bloomberg for comment on the AGC’s case against me. I have no idea what they’re referring to. I do not reply. Soon after, a reporter from Today newspaper called asking for comment too. This is real, I finally tell myself, but decline to comment to Today.
I search the AGC website and see no press release, but I see something in Facebook that links to Straits Times Breaking News which gives me a clue as to which articles the AGC is taking issue with.
I call my lawyers; they too had no idea about the new development. But they did a quick check and called back to inform me that the AGC has an “ex-parte” hearing Tuesday morning, in which they will seek “leave” from the High Court to press charges against me. “Ex-parte” means without the other party (me or my lawyers) present.
2. Tuesday, 26 November 2013
My lawyers show up at court and ask that the “ex-parte” hearing be converted (I’m not sure if this is the correct technical term) into an “inter-partes” hearing, in which both sides are represented. The hope is that they can object even at this stage and argue that the AGC’s application for “leave” should not be granted. The judge adjourns the hearing, asking lawyers to return on Wednesday morning with arguments for and against conversion to an “inter-partes” hearing.
I am told that in court the AGC was represented by the Deputy Chief Prosecutor, the No. 3 ranked officer after the Attorney-General and the Chief Prosecutor. What’s the (political) significance of this? Can’t figure out.
I still have not received any communication from the AGC.
A websearch reveals that in early 2013, the British parliament “abolish[ed] ‘scandalising the judiciary ‘ or ‘scandalising the court ‘ as a form of contempt of court under common law. The offence has not been prosecuted since 1931, although it had been considered for use in 1999.” (Source: Wikipedia) through Section 28 of the Crime and Courts Act 2013, which received royal assent on 25 April 2013. See also the Law Commission’s report prior to passage of the bill. During the debate in the House of Lords in December 2012, all the Lords who spoke were in favour of abolition.
I tell myself I have to re-read Tey Tsun Hang’s chapter on this topic. But where have I put the book?
3. Wednesday, 27 November 2013
After hearing arguments, the judge allowed an ex-parte hearing to proceed. My lawyers are given watching briefs, i.e. they can observe but have no right to speak. The judge decides to grant leave on one of the two articles in which the AGC alleges scandalised the judiciary – 377 wheels come off Supreme Court’s best-laid plans – but refuses to grant leave over the other article – Church sacks employee and sues government — on one ground right, on another ground wrong.
The threshold for granting leave is extremely low. The AGC only needs to make out a prima facie case. They failed to do so with the latter article.
4. Thursday, 28 November 2013
I have come to know that several people are keen on raising funds to help defray my costs. I have been unable to tell those who ask what my estimated costs will be, but I estimate that just retaining my own lawyers alone can easily be in the five digits. I am grateful for the offers and the efforts being made, and I immediately feel a responsibility to be transparent about the intended uses of any donations received. So, even before the first cent rolls in (if any), let me declare this: All monies will go into costs associated with this charge against me. In the event that there should be a surplus, that surplus will be donated to my two favourite causes in equal measure: Pink Dot and Transient Workers Count Too.
5. Monday, 2 December 2013
As of close of working day, no papers from the AGC have yet been served on me. However, my lawyers inform me that a pre-trial conference has been fixed for Wednesday, 18 December 2013. I don’t have to be present.
I am reading the sentencing decision (among other papers) from Alan Shadrake’s case. I see the judge saying this:
To constitute contempt by scandalising, a publication had to not only pose a real risk of undermining public confidence in the administration of justice; it had to also fall outside the ambit of fair criticism, meaning that it was either made without rational basis, made without a honest and genuine belief as to its truth, or made in abusive language.
However I also see that the courts have recently said imprisonment should be the norm if anyone is found guilty of scandalising the judiciary. Fines won’t be enough.
6. Tuesday, 17 December 2013
The Attorney-General’s Chambers (AGC) issued a press statement today saying that they have “filed an application in respect of the second article to the Court of Appeal, seeking leave to proceed against Au for contempt of court.” This application would in effect seek to overturn High Court Justice Belinda Ang’s denial of leave (on 27 November 2013) to proceed on the article Church sacks employee and sues government — on one ground right, on another ground wrong. Like before, the AGC is seeking an ex-parte hearing, which means a court hearing in which neither I nor my lawyers would be permitted to make arguments.
My lawyers point out that the AGC’s application was filed out of time, i.e. filed later than the seven days allowed. The AGC corrected the date.
7. Wednesday, 18 December 2013
The pre-trial conference mentioned in section 5 above, fixed for today, is postponed. Since the status of the ‘Church sacks employee’ article is unclear — the AGC seeking leave from the Court of Appeal to reinstate this article for proceeding against me — it doesn’t make any sense to hold a pre-trial conference until this is first sorted out. We need to know whether the trial is over one article or two.
8. Friday, 3 January 2014
I am filing an application to the Court of Appeal for my lawyers to be present and to speak at the Court of Appeal hearing mentioned above in section 6, in which the AGC will ask the Court of Appeal to overturn Justice Belinda Ang’s denial of leave for the ‘Church sacks employee’ article. In effect, my application will ask the Court of Appeal to convert the AGC’s requested-for ex-parte hearing into an inter-partes hearing.
9. Friday, 28 February 2014
I issued the following statement to the media:
At the Court of Appeal today, the court ruled that there was no valid application from the Attorney-General’s Chambers (AGC) for the court to hear, because of a procedural blunder by the AGC. I am happy that the Court so thoroughly vetted the purported application and ruled as it did.
However, the mistake by the AGC that resulted in today’s outcome also meant that I and my lawyers Peter Low and Choo Zheng Xi had incurred time and expense in preparing our response. Unfortunately, the Court also decided that since there was no proper application before it, the Court could not award me costs as well.
In short, my lawyers and I have incurred costs as a result of the AGC’s procedural blunder.
Background: In the first week of December 2013, the AGC made an application to review the 28 November 2013 decision by Justice Belinda Ang who refused to grant leave to proceed over the article Church sacks employee and sues government — on one ground right, on another ground wrong. The AGC moved for a ex-parte hearing on this. Through my lawyers I made an application to make this review an inter-partes hearing, i.e. a hearing in which my lawyers will get a chance to speak to contest the AGC’s application to reverse Justice Belinda Ang’s decision. Today’s hearing in the Court of Appeal was to hear the AGC’s application, but it turns out that the Court of Appeal found the AGC’s application to be procedurally flawed. My own application was thus moot and not heard.
10. Wednesday, 5 March 2014