The Court of Appeal has dismissed the appeal of Harvard economics professor Li Shengwu against the High Court’s decision to allow the Attorney-General’s Chambers (AGC) to serve papers on him regarding a contempt of court case whilst he is in the United States on Mon (1 Apr).
The written judgement by Chief Justice Sundaresh Menon, alongside Judges of Appeal Tay Yong Kwang and Steven Chong, referred extensively to the two issues raised by CJ Menon himself, alongside Judges of Appeal Judith Prakash and Steven Chong for the parties to address after granting leave to Mr Li on 3 Sep last year, namely:
- whether there was any statutory basis for the court to exercise substantive jurisdiction over someone who was overseas at the time the contempt proceedings started; and
- whether there are any other rules that could apply to confer jurisdiction.
The issue of procedural rule – that is, whether the decision for court papers for contempt to be served outside Singapore may be applied retroactively – was the key argument raised by Mr Li in light of the codification of the law of contempt through the Administration of Justice (Protection) Act on 1 Oct 2017.
High Court has both “substantive subject-matter” and “personal” jurisdiction over Li Shengwu’s alleged contempt and the alleged “contemnor” himself: Court of Appeal
The AG submitted that jurisdiction was established by the fact that Mr Li was in Singapore when he had allegedly posted the Facebook status, and not by the AGC’s service of the papers.
Mr Li’s lawyer Abraham Vergis, however, argued that jurisdiction, including personal jurisdiction, with regards to a contempt of court allegation must be established through proper service of the papers in accordance with the Rules of Court.
The judges noted that AG’s submission using s15 of Supreme Court of Judicature Act is based solely on a Reuters report that Mr Li was in Singapore when he posted the Facebook status.
They wrote, “The point remains that for the AG to make good his submission on s15, it was incumbent on him to place more robust evidence before us to establish the appellant’s whereabouts at the time he committed the alleged contempt.”
Throwing away AG’s argument that was grounded on s15 of SCJA, the judges went on to note that the High Court’s jurisdiction can be divided into two parts: substantive subject-matter, and personal.
The court’s substantive subject-matter jurisdiction to hear contempt cases “is founded on its inherent jurisdiction”, and is thus unchallenged in this case.
The Court of Appeal judges ruled that the High Court does have personal civil jurisdiction over “a foreign contemnor”, which is based on “s16 of the SCJA, through proper service of the committal papers in compliance with Order 11 of the ROC”.
“Service out of the jurisdiction was properly effected on the appellant because the AG’s claim for the court to exercise its power to punish for contempt was properly a claim made under written law,” i.e. Section 7(1) of the SCJA, according to the Court of Appeal judges.
The judges also emphasised that “the specific issue before us is unlikely to repeat itself for future cases involving foreign contemnors”, given that it is now established that service of papers outside jurisdiction is clearly established under Order 11 of the Rules of Court.
“Nonetheless, this judgment serves to explain the proper source of the court’s jurisdiction as well as the correct juridical basis for contempt cases,” they added.
Court of Appeal rejects AGC’s argument of “contempt” being strictly “criminal”; no clear demarcation between civil and criminal jurisdiction in Li Shengwu’s case
Citing Shadrake Alan v Attorney-General [2011] in their written judgement, the Court of Appeal judges rejected the AG’s argument regarding contempt being strictly criminal, as “there is no real reason in principle to distinguish between civil and criminal contempt”, given that both are inherently “quasi-criminal in nature”, despite scandalising contempt being termed an “offence” in Shadrake.
They reasoned that “mere adoption of the language of criminal law” does not automatically paint “criminal contempt with the same character as ordinary criminal offences”.
According to the judges, the civil-criminal distinction “may still be useful for taxonomical purposes”, and the Court of Appeal does not wish to “exclude the possibility that there may well be material differences relevant to the determination of a future case”, even if the use of such classification will decline under the AOJPA, the statutory legislation that governs the issue of contempt.
“So far as the present case is concerned, however, we consider that the jurisdictional basis for the law of contempt is sui generis, and does not cleave cleanly into either the civil or criminal jurisdiction of the High Court,” they added.
Sui generis, as defined by the Oxford Dictionary of Law, refers to legal classification that is unique or “of its own kind”.
The judges noted that the High Court’s jurisdiction for contempt, “whether civil or criminal”, is founded upon Section 7 of the Supreme Court of Judicature Act (SCJA).
However, they stressed that the Court of Appeal does not intend to “abolish [emphasis by judges] the labels of “civil” and “criminal contempt that have formed an established part of the common law”.
Additionally, following the rule in Mok Kah Hong v Zheng Zhuan Yao [2016], the judges “noted that it is a fundamental rule of justice that a person being called upon to answer a charge must first know the precise case that he has to meet, and should be accorded ample opportunity to refute the allegations”.
The Court of Appeal, the judges added, has “consistently held that the applicable standard of proof in both civil and criminal contempt” is “that of the criminal standard of proof beyond reasonable doubt” as stated in Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and others [2007].
No order for costs against Mr Li was made by the Court of Appeal judges for his unsuccessful appeal, as “the AG did not succeed on a number of points and raised several new but unnecessary points on appeal”.
The AGC initiated legal proceedings against Mr Li over “contempt of court” on 21 Aug last year, in which he had privately posted a statement on his Facebook, saying that “the Singapore government is very litigious and has a pliant court system”.
The post was related to the high-profile Lee family dispute surrounding the Oxley Road home of Mr Li’s late grandfather and Singapore’s founding Prime Minister Mr Lee Kuan Yew, in which Mr Lee Hsien Yang, his aunt Ms Lee Wei Ling, and Mr Lee Hsien Loong were involved.