Sub judice and Lynn Lee

By Choo Zheng Xi/ TOC Co-Founder

The “harm” that the law on contempt of Court seeks to prevent is the undermining of public confidence in the fair administration of justice.

The category of contempt of Court  Singaporeans would most likely have read about is an offence known as “scandalizing the Court”.

This was the type of contempt proceedings brought against English journalist Mr Alan Shadrake for statements about the Singapore judiciary in his book on the death penalty, “Once a Jolly Hangman”.

You might also remember a group of activists who were convicted for scandalizing the Court for wearing kangaroo t-shirts at the Supreme Court during a Court hearing of a defamation suit by Mr Lee Kuan Yew against Dr Chee Soon Juan.

Last week, a much less well known type of contempt of Court was used against filmmaker Lynn Lee. The Attorney-General’s Chmabers (AGC) issued a letter against Lynn lee for allegedly committing what is known as “sub judice” contempt of Court.

To the layperson, “sub judice” can loosely be understood as commenting on ongoing cases. “sub judice” means “under judgment” in Latin.

However, if one were to take a more critical look into the nature and history of the law on sub judice contempt, I don’t think the AGC correctly applied it to Lynn.

Also, given the lack of clarity of the law in this area in Singapore, the issuance of an accusation of sub judice contempt by way of warning letter is likely to have the unfortunate effect of making journalists err on the side of self-censorship.

The purpose of sub judice contempt

Let’s start with first principles.

The main purpose of sub judice contempt is to protect the rights of accused persons to a fair trial.

To illustrate, the English case of AG v Sport Newspapers Ltd was about a case of the disappearance of a schoolgirl on her way home from school.

The accused had previous convictions for sexual offences, but these were not put before the Court. “The Sport” newspaper published details of the accused’s previous criminal convictions.

The AG charged the editor of The Sport for contempt on the basis that the publication of the accused’s previous criminal convictions would prejudice his chance to a fair trial of his case: jurors hearing the case might be biased against the accused as a result of the information published.

The principles set down in AG v Sport Newspapers Ltd are important: “In criminal proceedings…the parties, particularly defendants, are entitled to a fair trial by a tribunal whose judgment has not been affected by extraneous pressure or inadmissibile evidence” (emphasis added).

And again, later in the judgment:

“It (the law on sub judice) exists to vindicate and protect the rights of litigants, not the rights of courts or judges save in so far as their task is to vindicate and protect the rights of litigants”. (emphasis added)

Lynn’s video has to been analyzed in this context: what was the likelihood that it could have prejudiced the fair trial of He Jun Ling and Liu Xiang Ying should their trials have gone ahead?

Was there a real risk that a Judge hearing the matter would have been adversely swayed against Liu and He by Lynn’s video?

Sub judice: a Singapore case from the history books

One has to dig deep to find a reported case of sub judice contempt in Singapore.

In 1967, a very interesting complaint alleging sub judice contempt was made against Dr Goh Keng Swee, then the Minister of the Interior and Defence.

The complaint was brought by Lau Swee Soong, a former student of Ngee Ann College.

Lau was arrested for participating in a student demonstration outside City Hall. Lau claimed trial to charges of rioting and was convicted.

Lau brought the sub judice complaint against Dr Goh in relation to statements made by the Ministry of the Interior and Defence about the demonstrations, in which Dr Goh and the Ministry alleged that the students had staged an illegal procession with the intention of staging clashes with the police.

Justice Choor Singh, in holding that Dr Goh was not guilty of sub judice contempt, held that the statements were of a general nature and was said by Dr Goh in the scope of his duty.

Justice Singh then went on to state that he would not exercise the Court’s powers to commit for contempt given the gravity of the punishment: “the jurisdiction (to punish for contempt), being arbitrary and unlimited, should be most jealously and carefully watched, and exercised with the greatest reluctance and the greatest anxiety”.

The above principle should certainly apply in Lynn’s case, as much as it did to Dr Goh Keng Swee.

Sub judice by way of letter: an unfortunate development

Given the purpose of the sub judice rule and its historical roots in Singapore, I doubt if the AGC’s warning to Lynn was the best way to proceed.

The warning letter issued to Lynn was terribly unfair. She now has to live with the stigma of an official “warning” letter stating unequivocally that she is guilty of contempt of Court.

This is despite the fact that the assertion was never tested in a Court of law. It is the view of AGC, which initiated the investigation, decided on her liability, and selected her punishment.

In fact, in light of the purpose and history of sub judice contempt, it is my personal view that it was unlikely that this charge would have succeeded in Court.

More significantly, the warning letter has the potential to negatively impact press freedom in Singapore. Lawyers advising journalist clients on how to proceed on reporting on ongoing cases are now likely to advise their clients to err on the side of caution.

This is unfortunate, given that the AGC’s “out-of-bounds” (OB) markers seems to be drawn more broadly than legal authorities suggest they should.

Separately, several people have also asked me why Prime Minister Lee’s comments on retaining s377A while a constitutional challenge is underfoot do not constitute sub judice contempt. These people point out that the Government’s rationale for retaining s377A is precisely an issue that the Courts currently have to decide on.

I am unable to answer that question, but perhaps greater clarity on the AGC’s policy approach to sub judice contempt would shed some light in this area.

Declaration of interest: Choo Zheng Xi was counsel for He Jun Ling and was part of the team that handled the s377A constitutional challenge. He writes this article in his personal capacity. This article is not intended to be relied on as a substitute for legal advice.