Alex Au vs AGC – a matter of liability or good faith?

Peter Low Alex Au Choo ZX Christine Low

By Howard Lee

In the hearing yesterday (21 October) of Alex Au vs the Attorney General Chambers (AGC) for contempt of court, the prosecution charged that Mr Au’s blog posts were made to intentionally bring disrepute to the Singapore judiciary system, while the defence urged the judge to adopt a narrower definition of contempt and to consider fair comment and Mr Au’s good faith in the case.

Mr Au, a blogger, was charged for allegedly suggesting in two blog posts, published in October 2013, that the court has deliberately managed the hearing times of two constitutional cases on Section 377A so that a particular Chief Justice can sit the case.

Fair comment is valid for defence, but liability an issue: Prosecution

Representing the AGC, Senior State Counsel Tai Wei Shyong said in his statement that while fair criticism can and should be applied to Mr Au’s blog posts, the issue before the courts was a matter of liability.

Mr Tai said that in the first article, titled “377 wheels come off Supreme Court’s best laid plans”, Mr Au has deliberately sought to suggest that, for one, the court has “best laid plans” to manipulate the conditions under which the 377A constitutional challenges would be heard; and for another, that these plans were foiled by lawyer M Ravi when he applied to consolidate the two cases.

Mr Tai said that Mr Au had suggested inappropriateness in how the court dealt with the two cases – the constitutional challenges mounted by Mr Tan Eng Hong, and another by Mr Lim Meng Suang and Mr Chee Mun-Leon – by insinuating that the Chief Justice had a biased and improper interest in the two cases and that the courts have deliberately adjusted the timing of judgements to accommodate this.

Mr Tai also said that Mr Au could not be said to have acted in good faith in making these suggestions, as his points made “relied heavily on the views of others”, in particular from a lawyer Mr Au claimed he met at a British High Commission event who did not identify himself to Mr Au.

Mr Tai cited the case of Alan Shadrake, the British author and journalist found guilty of scandalising the court, where Judge Quentin Loh had indicated that an essential part of remarks made in good faith is based on knowledge of facts gathered to the best of ability, or it was not fair criticism.

On Mr Au’s second article, “Church sacks employee and sues government – on one ground right, on another wrong”, Mr Tai said that the article – in particular Mr Au’s expression that his “confidence in the judiciary is as limp as a flag on a windless day” – must be read in relation to the first, due to the proximity and intent of both.

“The word in the articles speak for themselves,” said Mr Tai, “and when read together, suggests that both have crossed the line.”

Mr Tai said that as the matters discussed by Mr Au in the posts were still being processed through the courts, his articles present a real risk that public confidence in the justice system will be undermined.

Allegations of innuendo, insinuation, imputation does not make contempt: Defence

The defence, led by lawyers Mr Peter Low and Mr Choo Zheng Xi, said that the AGC has taken “a generous view on where scandalising contempt can be applied”, and Mr Tai’s statement relied heavily on assertions of innuendo, insinuation and imputation, which alone cannot make a case of contempt.

Mr Low, in particular, noted that Mr Tai’s statement included six mentions of insinuation, three of imputations and one of implication, none of which were able to clearly show that Mr Au intended to say what he was charged with saying.

Mr Choo said that Mr Au had merely pointed out in his articles the “strange calendaring” of the release of judgement in the two constitutional challenge cases, with no suggestion that it equates improper conduct of the Chief Justice or the court.

Similarly, Mr Choo said that Mr Au’s article only indicates that the Chief Justice was interested in hearing the appeal, as it was an important constitutional case. In no way did Mr Au suggest that the Chief Justice’s actions were inappropriate.

He contended that such allegations were “a leap of logic in the Attorney General’s submission”, and that the prosecution must prove that Mr Au intended to interfere with the execution of justice for the contempt charges to hold.

Mr Choo asked that the court takes a narrower and more stringent definition of contempt. He cited various examples in Commonwealth law where the courts have exercised greater discretion in how contempt was justified, in particular where the defendants have made their comments in good faith, at times even with vehement and insulting language.

He also referenced the Shadrake case, where a total of 14 charges were made against Mr Shadrake based on statements in his book. However, Judge Quentin Loh had expressed scepticism on whether all the statements were made in reference to the court to count as contempt.

Judge Loh had also indicated that the judgement of fair criticism holds so long as the defendant provides “some rationale” for the criticism he makes.

Mr Choo added that the AGC submission seems to suggest that it is sufficient to prove Mr Au’s comments are false, and took issue with how Mr Au had gathered his evidence. This, however, completely misses the point of rationale for fair criticism.

To support Mr Au’s claim that he wrote the articles in good faith, Mr Choo indicated that Mr Au nowhere shirks responsibility for his statements, although he cited other sources. He had written the articles using whatever information he had available, including articles from Yahoo News and The Straits Times, and believed that his theory fits his observation.

Mr Low also took issue with the AGC’s claim that Mr Au’s second article stems from his belief of the inadequacy, incompetence, impartiality of the judiciary. Instead, Mr Low indicated that the article made no mention of systematic bias.

“My submission that the Attorney General’s point is unreasonable and extravagant,” Mr Low said.

He also said that Mr Au was not trenchant in his writing, but was instead tempered in tone and manner.

The defence also question whether Mr Au’s blog posts could pose a real risk in scandalising the judiciary, as all Mr Au did was speculate on how the inner court works, with no allegations of impropriety that the prosecution could clearly proof, and hence does not pose an element of risk in public perception on Singapore’s system of justice.

Can’t read at face value: Persecution

In responding, Mr Tai accepted that AGC’s submission did use innuendo, insinuation and imputation. “I suspect Mr Au to be a highly intelligent person… and no article should be read at face value. What is not said can be even more revealing in terms of the author’s intent compared to what was written down. Mr Au must be aware that he has no need to state word for word to say what he wants to say.”

Mr Tai also contested the claim by the defence that there was no real risk, as Mr Au is regarded as a public intellectual and has a significant readership among the LGBT community.

He also said that Mr Choo’s call for the court to approach the case as a legal system in a developed country was only making “political statements”. “There is no room for a wide application of principle as illustrated in other countries, and we need to apply the rule of law to its context,” he said.

Mr Choo took exception with Mr Tai’s assertion of political statements, indicating that he has a basis for every statement he made in reference to case law.