The Court of Appeal has reserved judgment on four separate appeals arising from the convictions of civil activist Jolovan Wham and Singapore Democratic Party (SDP)’s vice-chairman John Tan for contempt of court on Wednesday (22 January).

Of the four appeals, two were filed by Wham and Tan against their convictions and sentences, while the other two were filed by the Attorney-General’s Chambers (AGC) against Justice Woo Bih Li’s decision not to order both men to issue apology notices and Wham to remove his Facebook post containing the contemptuous statements.

In April 2018, Wham shared a link on his Facebook to an article from Malaysiakini (“the April 2018 post”). The article reported that Malaysiakini had filed a constitutional challenge against Malaysia’s Anti-Fake News Act 2018 which came into force that month. In that post, Wham also suggested that Malaysian judges are more independent than their Singapore counterparts in cases with political implications.

This led to the AGC commencing contempt of court proceedings against Wham. A few days later, Tan commented on Facebook that the AGC, in doing so, has confirmed what Wham said was true. This was the subject of the contempt of court proceedings against Tan.

In October that year, Justice Woo convicted both of contempt of court. In April last year, both men were fined $5,000 each (in default one week’s imprisonment) and ordered to pay costs to the AGC. Justice Woo, however, did not accede to the AGC’s request for an order that both men issue apology notices and Wham remove the April 2018 post.

Two weeks before the appeal was heard, Wham once again included the statements from the April 2018 post in an update informing the readers of the appeal, just as he did when notifying the readers that judgment was about to be delivered in October 2018. This was brought to the attention of the Court of Appeal by Deputy Chief Prosecutor cum Senior Counsel Mohamed Faizal, who represented the AGC on appeal.

One of the focuses of the appeal, as flagged out by Chief Justice Sundaresh Menon, was on the requirement that the scandalising material “poses a risk that public confidence in the administration of justice would be undermined” as provided for under the Administration of Justice (Protection) Act 2016 (AJPA). This was in contrast to the “real risk” test as adopted by the apex court in the previous cases of Alan Shadrake (2011) and Alex Au (2015).

Mr Choo Zheng Xi, who represented Wham alongside Mr Eugene Thuraisingam and team, argued that the risk of undermining public confidence cannot be a “remote” or “fanciful” one. To this, CJ Menon was inclined to agree that, much as Parliament intended to lower the threshold for finding of guilt, it does not extend to covering a virtually non-existent or “imaginary” risk.

When Mr Faizal responded to this aspect of the argument, Judge of Appeal Andrew Phang also queried on the practical differences between the “real risk” test and the “risk” test, suggesting that “there may be constitutional implications” if the risk can be a non-existent one.

In Tan’s case, Mr Thuraisingam sought to characterise Tan’s comment as an “angry emotional outburst” against the AGC, to support the argument that Tan’s comment was not in contempt of court, and alternatively, that the fine imposed on Tan was crushing.

Judge of Appeal Steven Chong, who is also part of the coram together with Judges of Appeal Judith Prakash and Tay Yong Kwang, opined that if Tan’s statement was not illogical, he must then have agreed and aligned himself with Wham’s statement for him to be able to say that the AGC had “confirmed that Wham’s statements were true”.

Mr Thuraisingam also pleaded for the court to exercise its discretion to impose a custodial sentence on Tan in place of a fine, such that Tan would not be disqualified from standing for elections for five years, although “the court does not have to do so”.

In response to CJ Menon’s queries, Mr Faizal told the court that it did not matter substantively whether Tan was imprisoned or fined, though they were taking issue with Tan asking for the court’s indulgence to impose a jail term for his personal reasons.

Mr Faizal also placed reliance on the fact that Wham included the statements in his updates on two occasions, to argue that Wham had intended his statements to be taken seriously by the readers.

In response, Mr Thuraisingam conceded that it’s fair for the court to order Wham not to repeat the statements regardless of its purpose, though he contended that such an order was “different in nature” from ordering Wham to remove the April 2018 post.

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