Flapping wildly amidst the wreck

For the last few weeks, Singapore-based Keppel Offshore and Marine Ltd (“KOM”) has been in the news for all the wrong reasons. KOM and its wholly owned US subsidiary, Keppel Offshore & Marine USA Inc. have agreed to pay a combined total penalty of more than US$422 million (S$565 million) for making corrupt payoffs to officials in Brazil. Brazilian authorities will receive 50% of the penalty, while the US and Singapore authorities will receive 25% each.

This will hurt. KOM’s profit after tax for financial year ending 31 December 2016 was only S$326 million. Its business was already troubled as can be seen from the fact that its 2015 profit after tax was a much higher S$528 million.

In our circus, few understand what ‘equal protection of the law’ means

Andrew Loh posted a ‘scratch head’ article recently about the contradiction between what then-Minister of State Halimah Yaacob said in 2011 at a CEDAW conference in New York and the Court of Appeal affirming Section 377A to be constitutional. In A difference of opinion between the gov’t and the Court of Appeal?, he quoted Halimah as telling delegates at that UN conference that

The principle of equality of all persons before the law is enshrined in the Constitution of the Republic of Singapore, regardless of gender, sexual orientation and gender identity. All persons in Singapore are entitled to the equal protection of the law, and have equal access to basic resources such as education, housing and health care. Like heterosexuals, homosexuals are free to lead their lives and pursue their social activities.

But just a month ago, the Court of Appeal ruled differently.

My trial for contempt of court, part 5: mens rea, tone and tenor

Parts 1 to 3 dealt with the specific stings that the Attorney-Generals’ Chambers complained of, from two articles on this blog Yawning Bread: “377 wheels come off Supreme Court’s best-laid plans” published on 5 October 2013 and “Church sacks employee and sues government” published on 12 October 2013. My lawyers vigorously contested the accusations, describing the AGC’s case as a “house of cards”. Part 4 dealt with the legal burden and examples from the Shadrake case.

During the trial on Tuesday 21 October 2014, several other issues were also addressed that did not refer specifically to any statement complained of, but were nonetheless important overarching issues. I will record what was said on these points here in this fifth (and last) article.

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.

My trial for contempt of court, part 3: the second article

Christ and the woman taken in adultery, by Nicolas Poussin, 1594-1665

In his oral submission, Peter Low, arguing in my defence, took only about twelve minutes to address the allegations made by the Attorney-General’s Chambers with respect to the second article “Church sacks employee and sues government”. The written submission however was more substantial.

Peter cut to the chase which was why he didn’t need much time. In addressing paragraphs 67 to 97 of the AGCs’ written submission (dealing with the second article), he reiterated that “what is alleged is not borne out by the plain words of the contents of the second article.” Within those 31 paragraphs from the AGC, he said, the AGC relied on the word “insinuation” six times, the word “imputation” three times and the word “implication” once.

My trial for contempt of court, part 2: first article, second sting

The other part of the first article “377 wheels come off Supreme Court’s best-laid plans” that the AGC took exception to concerned my description of events leading to lawyer M Ravi (pictured at right) withdrawing his client’s application to intervene in the Kenneth and Gary appeal. I had written in the article that

M Ravi … in August 2013, acting for his client Tan Eng Hong, made an application to the High Court to be recognised as an interested party in the Court of Appeal hearing on the Kenneth and Gary case. The argument is that since the outcome of Kenneth and Gary’s appeal will affect Tan’s case (for which the High Court judgement was still pending at the time) Tan should be permitted to intervene.

This move must have upset the best-laid of plans. From a legal point of view, it would be very difficult to deny such an application. The fact of the matter is that the two cases are very similar. Whatever ruling comes out of the Court of Appeal in Gary and Kenneth’s case, it would clearly impact Tan Eng Hong’s case.

My trial for contempt of court, part 1: first article, first sting

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.”