What is the Offence of Contempt of Court in Singapore?

On 7 August 2017, a prominent lawyer was fined $6,000 for being in contempt of court by posting on Facebook a poem alleged to cast certain aspersions on the Singapore judiciary. It didn’t matter that he had already removed the post, publicly apologised and clarified that he had no intention of criticising the judiciary.

This case serves as a good reminder – especially with the proliferation of social media and social commentary – of the need for individuals to take extra care when publishing or disseminating any articles which could be seen as showing contempt towards the judiciary. This article hopes to shed some light and increase awareness on the law with regard to contempt of court.

What Constitutes Contempt of Court?

The law on contempt of court in Singapore can be found in the Administration of Justice (Protection) Act (AJPA), which came into operation on 1 October 2017.

There are 4 main types of conduct which constitute contempt of court. These are:

1. Scandalising the court
2. Interfering with the administration of justice
3. Disobedience of court orders
4. Sub judice contempt

1. Scandalising the court e.g. by making baseless attacks on the judiciary

This is covered under section 3(1)(a) of the AJPA, which makes it an offence for an individual to intentionally publish any matter or do any act that:

• Imputes improper motives to or impugns the integrity, propriety or impartiality of any court; and
• Poses a risk that public confidence in the administration of justice would be undermined.

(The test for scandalising the court will be explained in further detail below.)

2. Interfering with the administration of justice

This is covered under section 3(1)(c), (d) and (e) of the AJPA, which respectively make it an offence for an individual to intentionally:

• Interfere with or hinder another person’s access to or ability to appear in court, knowing that this person is a party, witness, advocate or judge in ongoing court proceedings;
• Offer any insult or cause any interruption or obstruction to any judge sitting in court proceedings; and
• Do any other act that interferes with or obstructs the administration of justice (or poses a real risk of the same) in any other manner, if the person knows, or ought to have known, that the act would have such an effect.

This is covered under section 4 of the AJPA, which makes it an offence for an individual to intentionally:

• Disobey or breach any judgment, decree, direction, order, writ or other court process; or
• Breach any undertaking given to a court.

4. Sub judice contempt e.g. attempting to influence the outcome of cases

This is covered under section 3(1)(b) of the AJPA, which makes it an offence for an individual to intentionally publish any matter that:

• Prejudges a pending issue in a court proceeding, where such prejudgment prejudices or interferes with the course of any pending court proceeding (or poses a real risk to or interference with the same); or
• Otherwise does so.

Under section 5 of the AJPA, unauthorised recordings (both audio and video) of court proceedings are also considered to be in contempt of court.

Test for Contempt by Scandalising the Court

The common law test for contempt by scandalising the court is stated in the 2015 case of Au Wai Pang v Attorney-General (“Au Wai Pang“). It comprises of two stages:

1. Whether there is a real risk that the impugned statement has undermined or might undermine public confidence in the administration of justice in Singapore. One important consideration is the impact which the statement would have had on an average reasonable person; and
2. Whether the individual had intentionally published the impugned statement.

The main rationale for the test is to ensure that public confidence in the administration of justice is not undermined.

There is one significant difference between the tests for contempt by scandalising the court, as stated in section 3(1)(a) of the AJPA and as stated in Au Wai Pang. This is namely with regard to the degree of risk that the statement has to pose to the public confidence in the administration of justice.

Instead of requiring a “real risk”, as per Au Wai Pang, section 3(1)(a) of the AJPA requires that there only be a “risk” that such public confidence will be undermined. This lowers the threshold of risk required for the court to find an individual to be in contempt of court.

Apart from that however, the test for contempt by scandalising the court stated in Au Wai Pang appears to still be largely consistent the test for the same under section 3(1)(a) of the AJPA.

For instance, section 3(2) of the AJPA states that the statement-maker would be guilty of contempt (by scandalising the court) even if he/she did not intend to scandalise the court. This appears to be consistent with the common law test in Au Wai Pang, which is also not concerned with whether the statement-maker intended to undermine public confidence in the administration of justice, so long as the statement-maker had intended to publish the statement.

Section 8 of the AJPA makes it clear that the common law rules on contempt of court still apply to the extent that they are not inconsistent with any of the AJPA’s provisions. Therefore apart from changing the risk threshold from “real risk” to “risk”, it is likely that the common law test for contempt by scandalising the court, as stated in Au Wai Pang, will continue to apply to the extent that it is not inconsistent with the AJPA’s provisions.

Defences to Contempt of Court

Fair criticism (contempt by scandalising the court only)

Fair criticism is a defence only in relation to contempt by scandalising the court. It can be found in Explanation 1 to section 3(1) of the AJPA.

It was held in Au Wai Pang that criticism was said to be fair when there is a rational basis for the criticism and such rational basis is accurately stated.

Fair and accurate report made in good faith

A fair and accurate report of court proceedings will not constitute contempt of court if it is published in good faith, under section 14 of the AJPA.

The court will consider a wide spectrum of factors when determining whether a report was made in good faith. These factors include:

• Whether there is some reason or basis for the report;
• Whether the report was expressed in a temperate and dispassionate manner; and
• The attitude of the individual who published the report in court.

In addition, under section 16 of the AJPA, reports which allege corruption or misconduct of a judge will not constitute contempt of court if such reports:

• Are made in good faith; and
• Disclose grounds which, if unrebutted, would provide a sufficient basis for the investigation of the allegation of misconduct or corruption.

The filing of any action, application, affidavit or pleadings against a judge (including an application seeking the disqualification of any judge) will also not constitute contempt of court if such filing was done in good faith.

Innocent publication

Anyone who exercises editorial responsibility or other control over a publication will not be guilty of contempt of court if such publication was done:

• Without his or her authority, consent or knowledge; and
• Without any want of due care or caution on his or her part.

This defence is provided for under section 18 of the AJPA. However, that person cannot be the author of the publication, i.e. the originator of the matter published.

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Contempt of court should not be taken lightly. Any person found to be liable for such an offence may be fined up to $100,000 and/or jailed for up to 3 years.

Individuals are therefore advised to be careful when writing commentaries or reports, especially where these relate to the judiciary.