Opening my defence, my lawyer Choo Zheng Xi said the Attorney-General’s Chambers’ case relied heavily on reading innuendo, insinuation and imputation into my words. The words used in the prosecution’s submission to describe the allegations I was supposedly making against the judiciary do not exist in the articles complained of, he said before Justice Belinda Ang, and that it would be important to always keep this in mind when considering the prosecution’s case. He further characterised the AGC’s case as full of hyperbole.
In written submissions, my lawyers had also written that “the Applicant [i.e. AGC] has had to twist Mr Au’s words out of context and to editorialize to impute sinister innuendo into his article where none exists. In so doing, the Applicant has mischievously ignored the caveats in Mr Au’s article that clearly flag out to his readers that he is theorizing, as opposed to making statements of fact.”
When Zheng Xi rose to speak, it was about 11:40h on Tuesday, 21 October, an hour and a half into my trial. The AGC was seeking “committal” (i.e. imprisonment) because (they allege) I had displayed contempt of court through “scandalising the judiciary”. The court had set aside two days for the hearing — Tuesday, 21 October and Thursday 23 October (Wednesday being Deepavali, a public holiday) — with Friday held in reserve. My lawyers and I were expecting the AGC to use up the whole of the first day to present its case. I am given to understand that in the similar trial of Alan Shadrake in 2010 for contempt of court, the AGC took a full day to do so too. Thus it was quite unexpected that the prosecution rested within less than two hours.
Belinda Ang was the judge before whom the AGC first sought leave to cite me for contempt in November 2013. At that very first ex-parte hearing, she granted leave only for the first article “377 wheels come off Supreme Court’s best-laid plans”. She denied leave for the second article “Church sacks employee and sues government”. Her denial of leave was overturned on appeal in further procedural hearings.
Very technical
The arguments presented in court were necessarily very technical, for two primary reasons: much depended on the words I had written and what they meant, and secondly, because the law of contempt is a fraught area of law potentially in conflict with the right to freedom of expression. No witnesses were called. There were bundles and bundles of documents since many arguments rested on authority of preceding cases, the most-cited of which was AGC v Shadrake 2010.
While in the end Alan Shadrake was given jail time, he was not actually found in contempt for all the 14 statements cited. After the appeal stage, he was cleared of five instances, and the reasoning applied by both the High Court judge Quentin Loh in the first instance and in the Court of Appeal, especially in these five instances, made for useful authority in mine.
Much of the argument before Ang by the AGC, represented by Chief Prosecutor Tai Wei Shyong, and replied to my by lawyers Peter Low and Zheng Xi, centred firstly on whether the words I had written fell within the ambit of fair criticism. It is trite law that fair criticism is allowed, but where to draw the line between fair criticism and contempt? Secondly, whether my statements posed a “real risk” — the legal test set out in Shadrake — of undermining public confidence in the administration of justice.
An additional argument, raised by my lawyers, was that mens rea (the intention to commit the offence) also need to be proven. The AGC said the deliberate act of publishing was sufficient proof of mens rea. My lawyers said a recent UK Privy Council decision established that it was not (more in a subsequent part of this multi-part article).
“Unwarranted overlay”
Tai argued that my first article “insinuates that (a) the Chief Justice had a vested and improper interest in the issue” of the constitutionality of Section 377A of the Penal Code (which criminalises homosexual acts between men, a matter now under consideration by the Court of Appeal) and “(b) the Chief Justice, the relevant Judge and the Supreme Court as a whole, had deliberately and improperly engaged in subterfuge …. in order to enable the Chief Justice to be on the coram of the Court which determined the issue of the constitutionality of s 377A.”
My lawyers, when their turn came to speak, once again reminded the judge that the words used by the AGC “vested and improper” are nowhere in the first article. Nor the words “improperly” nor “subterfuge”.
More specifically, the actual passages in “377 wheels come off Supreme Court’s best-laid plans” were these:
At first, many thought that the judgement in the Tan Eng Hong case would follow soon after Kenneth and Gary’s, but as weeks turned into months, the general consensus in LGBT and legal circles was that the delay was deliberate.
The common view was that Chief Justice Sundaresh Menon wanted to be part of the three-judge bench that hears this constitutional challenge. He could do so in the Kenneth and Gary case, but he would have to recuse himself in the Tan Eng Hong case, since he was the Attorney-General at the time the case was going through the lower courts (2010 – 2012). This neat theory would account for the fact that although the Tan Eng Hong case was launched earlier, in September 2010, it was given later hearing dates than the Kenneth and Gary case. This strange calendaring thus allowed the couple’s case to proceed ahead, reaching the Court of Appeal first.
The complication was that since the two cases were so similar, it would be more efficient to consolidate the two cases at the appeal stage. But consolidation would also mean that Sundaresh Menon would be obliged to recuse himself. The view from the ground therefore, was that the Tan Eng Hong case was red-lighted by a delay in delivering the judgement so that an appeal could not be filed until the Kenneth and Gary case had been heard.
In my defence, my lawyers submitted that “Nowhere in Mr Au’s article is it suggested that the Chief Justice, in wanting to hear the Lim Meng Suan [i.e. the Kenneth and Gary] challenge to the constitutionality of s377A, was at all acting improperly. In fact, Mr Au explains in his first affidavit that he took the view that the Chief Justice was entirely justified to make the necessary scheduling arrangement to ensure that he could sit in judgement of the constitutional challenge.”
My affidavit had said:
I was not of a mind that Sundaresh Menon wanting to be on the appeal panel for the Lim Meng Suan case was in any way nefarious, and I do not think my article conveyed such meaning at all. The thought occurred to me, as I wrote and earlier, that it was entirely reasonable for the Chief Justice to want to be on the panel, this case being of huge constitutional significance. If a little engineering was needed to avoid having to recuse himself, yet keeping to convention, this was not necessarily a bad thing.
It is not that I looked forward to, or hoped against Sundaresh Menon being on the panel – I had no strong feelings on the matter – but I could understand why a Chief Justice might feel his presence and participation was for the best. Moreover, I had no view whether Menon’s presence on the panel would raise or diminish the chances of success of Lim Meng Suan, and not holding any such view, I do not believe that anywhere in the article is any suggestion that his presence would be prejudicial one way or another.
My lawyers argued from a precedent established in Shadrake that where a passage has two possible meanings, “it is incumbent upon the Court to adopt the more favorable interpretation” and that this was “precisely the approach taken by the Court of Appeal in Shadrake-CA, where the Court of Appeal gave the Respondent-Appellant the benefit of the doubt in relation to the second and fourteenth statements and held that they were not in contempt of Court.”
My lawyers drew attention to the fact that books have been published (and authors not punished) wherein the inner workings of apex courts were described. They cited “Final judgment — The last Law Lords and the Supreme Court” by Alan Paterson, 2013, in which was written:
However, towards the end of the House it was not unknown for some Law Lords, but by no means all, having heard that a particular appeal was on its way to the House, to ask the Principal Clerk if they could sit on that appeal since it raised a point of law in which they had a special interest.
Also, in the bestseller “The Nine — Inside the secret world of the Supreme Court”, author Jeffrey Toobin described how US Chief Justice Rehnquist in 1992 preferred that a case involving the abortion decision Roe v Wade not be heard until after the US presidential election, and how he took steps described as “running out the clock” to delay hearing the case.
In response, Tai pointed out — at least as I understood him to say, rather softly and quickly — that the reason those authors were not penalised was because the US had no equivalent law of contempt and in the UK, the law had become a “dead letter”, i.e. not enforced for decades. Even so, the AGC did not seem, on my reading, to be saying that any comment about the inner workings of the courts were contemptuous per se, but as my lawyers argued, AGC had to rely on “an unwarranted overlay of an insinuation of turpitudinous conduct which is, in the context of the First Article, nowhere implied.”
Lacked rational basis, AGC said
The AGC argued that what I had written in the first article (theorising why the Tan Eng Hong was “red-lighted”) did not constitute fair criticism because it lacked rational basis. In my affidavit, I had said that the notion that the the delay in the Tan Eng Hong judgement had something to do with Chief Justice Menon wanting to be on the Kenneth and Gary panel first came to me from lawyer acquaintances and that it seemed to fit the few known facts, i.e. the “strange calendaring”. The AGC argued that I should have at least adduced evidence to support my cliam that others too had mentioned similar views, which I had not. Secondly, that “even if it were proved that there were others who held the same view, this alone is insufficient to satisfy the requirement of a ‘rational basis’ without more.”
Tai argued in court: “These references to views of others cannot assist Au. They do not provide an objective basis for the statements… cannot satisfy good faith by relying on the views of others.”
My lawyers contested this. In the first place, rational basis is not the same as proof, though it requires “some reason or basis for the criticism or else it would amount to an unsupported attack on the court.” They said my conclusions were based on “logical deductions arising out of an objective set of facts (i.e. the timings of the release of the Tan Eng Hong and Lim Meng Suang judgements.)”
Moreover, Zheng Xi pointed out, others have had similar concerns about disjointed timing. I suppose the point they were making was that if others came independently to the same view, it could only show how logical and reasonable such a view was. As early as April 2013, months before my article was written and even before the release of the Kenneth and Gary judgement, a Yahoo news report (dated 2 April 2013) said:
Human rights lawyer M Ravi on Tuesday appealed to Singapore’s High Court to issue its judgement on two ongoing constitutional challenges to its controversial gay law at the same time.
— Yahoo news, 2 April 2013, Lawyer seeks same-time verdict for 377A cases
Peter Low and Choo Zheng Xi cited previous judgements to help throw light on where to draw the line. In the case of Tan Liang Joo, the impugned statements “contained no reasoning or discussion, but only declamation and invective”. By contrast, my lawyers argued, the tone I took in the article was “not impolite and does not impute improper motive of lack of impartiality, nor does it even insult the Court.” They also drew attention to a 1951 Privy Council case (Perera v R) where even factual mistakes were made but the Privy Council held that “the accused was acting in good faith and his criticism was honest criticism on a matter of public importance.”
They also referenced a case from Scotland (Anwar 2008) where counsel for the accused had made in a press statement misleading and factually inaccurate criticism of the judgement. The lawyer misrepresented the grounds on which his client was convicted of terrorism-related offences. But the court held that, despite the fact that the statements “embody angry and petulant criticism of the outcome of the trial process and a range of political comments concerning the position of Muslims in our society, we believe that the authority of the courts and the supremacy of the law have not been challenged or damaged by this criticism. As has been said in many of the authorities to which we have referred, judges who administer the law must expect and accept that proceedings over which they exercise control may, from time to time, be publicly and trenchantly criticised.”
My lawyers submitted that the court “should provide a wide margin of tolerance for criticism even in cases where trenchant and vehement language is used” — while arguing that I did not use trenchant language –and that the court should “pay especial heed to Article 14(1)(a) of the Constitution of the Republic of Singapore, which enshrines the right of every citizen of Singapore to freedom of speech and expression.”
Continued in Part 2.
Links to:
Part 2: First article, second sting
Part 3: The second article
Part 4: Legal burden and Shadrake precedents
Part 5: Mens rea, tone and tenor
(Since judgement has been reserved and the case is not totally over, please understand I will not publish readers’ comments.)
Yawning Bread 
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