My trial for contempt of court, part 4: legal burden and Shadrake precedents

My lawyers Peter Low and Choo Zheng Xi submitted, citing the Court of Appeal decision in Shadrake, that for the AGC to succeed in its application for my committal,

it must prove beyond a reasonable doubt that the Publications prose a real risk of undermining public confidence in the Judiciary… The real risk test will not be satisfied in a situation where the risk of undermining public confidence in the administration of justice is remote or fanciful. Further, a Respondent will not be liable for contempt of Court if his comments amount to fair criticism. The legal burden is on the Prosecution to establish that the impugned statement does not constitute fair criticism, although the evidential burden is on the party relying on it.

My understanding of the AGC’s position is that it more or less agrees with the above description of its legal burden, with two areas of possible dispute.

One is whether, in ascertaining if a statement constitutes fair criticism, in addition to “the extent to which the statement is supported by argument and evidence; there must be some reason or basis for the criticism, or it would amount to an unsupported attack on the Court”. It’s a formulation that my lawyers do not disagree with. They however maintain that I had sufficient rational basis to make my statements.

Two: whether the criticism was temperate and dispassionate, keeping within the limits of reasonable courtesy and good faith, or outrageous and abusive. I believe my lawyers disagree with an overly narrow interpretation of this, since they cited examples of cases where even intemperate, factually erroneous statements were not considered contemptuous.

A more central question for the court was whether fair criticism goes to defence or towards liability. When asked by Justice Belinda Ang what the AGCs’ position on this was, Chief Prosecutor Tai Wei Shyong said there was no unequivocal position from case law.  He noted that “the Court of Appeal in Shadrake provisionally held that ‘fair criticism’ goes towards liability, as opposed to being an independent defence.”

Readers might wonder what the difference is. In Tai’s spoken words at the hearing,

If the Court finds that it is a defence, then the defendant must prove [that it was fair criticism] on the balance of probability. But if the legal burden is on the AGC because it’s a question of liability, then the defence [needs only] raise a reasonable doubt [that the statements were NOT fair criticism].

Alan Shadrake, author of ‘Once a Jolly Hangman’ — a book about the death penalty in Singapore — was sentenced to six weeks in jail and a $20,000 fine after being found in contempt of court.

Peter and Zheng Xi also argued for an updated mens rea test as another legal burden on the AGC, but Tai argued that the same mens rea test as applied in Shadrake should remain. This will be discussed in Part 5.

Careful reading of Shadrake’s case

Choo Zheng Xi took the court through a careful reading of Shadrake’s case “to show how the High Court and the the Court of Appeal gave benefit of doubt” and how they held the prosecution “to a burden of proof beyond reasonable doubt.” (You can read the High Court judgement here and here, ) Justice Quentin Loh, in dealing with the third statement complained of against Shadrake — the statement being “It also put the spotlight on Singapore’s legal system which many observers inside and outside the country believe has been perverted to suit political and economic expediency”– wrote in his judgement:

I find it difficult to read the reference to the system as excluding the courts. But I do find that the 3rd statement does not unambiguously refer to the courts, or to any judicial act or function, in contrast to the 1st statement which refers to the imposition of the death sentence. I therefore give Mr Shadrake the benefit of the doubt that the 3rd statement does not specifically refer to the courts.

“The Court gave benefit of doubt when there are conflicting interpretations,” Zheng Xi pointed out. “If the respondent has an explanation that holds water, it has to be preferred.”

With respect to the sixth statement — “the implementation of capital punishment is highly discriminatory. According to Amnesty International, the death sentence is more likely to be imposed in Singapore on those who are poorer and less educated making them more vulnerable than average” — Quentin Loh wrote that

The reference to Amnesty International’s report makes clear that Mr Shadrake in making the 6th statement was talking only about the incidence of the death penalty, and not whether the courts are biased against certain groups in imposing the death penalty. I therefore find that the 6th statement did not allege any wrongdoing or impropriety on the part of the courts.

The Court of Appeal, said Zheng Xi, upheld this; it fell within the margin of error.

Regarding the twelth statement from Shadrake — “Although the legal system was based on English law it was soon fine-tuned to ensure that Lee Kuan Yew and his People’s Action Party remained in power in perpetuity by silencing all political opposition through fear of being jailed as ‘communists’ or financially ruined” —  the judge considered that it could also mean being jailed through the Internal Security Act, which didn’t involve the courts, and so, once again, he gave Shadrake the benefit of the doubt.

With respect to the fourteenth statement — “The ruling party in Singapore often sues those who dare oppose it on trumped up defamation charges, forcing many into bankruptcy or exile”– whilst Quentin Loh felt it was not fair criticism, (in other words, it was contemptuous, ) the Court of Appeal thought otherwise. See its decision here. It wrote:

there is no reference (either on a literal or contextual reading) to the judiciary as such. Indeed, the focus appears to be on “[t]he ruling party in Singapore”…. Put simply, the Respondent [i.e. the AGC] has not proved, beyond a reasonable doubt, that the fourteenth statement is in contempt of court and we so hold.

Zheng Xi said these examples “closes the loop as to how this court should apply relevant legal principles.”

Cogency

Turning to what would be needed for the defence to show rational basis, Zheng Xi argued that “The manner in which the AGC has framed their written submission seems to suggest that it is sufficient for the AGC to prove that Au’s comments are not true or correct. This completely misses the point of the rationale for fair criticism.” He went on to elaborate that the respondent (i.e. me) is not required to establish an “unassailable or objective basis”.

“The court is not required to determine if [the allegations] are proved as fact.”

Continuing, he pointed out that it is “sufficient for the defendant to make some rational basis” though allowing that the cogency of that rational basis “increases correspondingly with the seriousness of the allegations made.”

“Generally, courts do not require proof… but the more serious your allegations are, for example, of partiality or corruption, the more cogent” should the rational basis provided be. “Au’s articles constitutes nothing of that magnitude.”

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Continued in Part 5 (the last part)

Links to:

Part 1: First article, first sting,
Part 2: First article, second sting,
Part 3: The second article,
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.)