SINGAPORE — The appeals by civil activist Jolovan Wham and opposition leader John Tan against their conviction and sentence for scandalising contempt were dismissed on Monday (16 March) by the Court of Appeal.
In a written decision, a court of five judges also ruled that Wham remove the incriminating post from his Facebook wall. But the court declined to grant the apology order against Wham and Tan as sought by the prosecution.
The duo’s case was previously heard in the High Court and they were convicted of scandalising contempt, and each fined $5,000, with one week’s jail if they could not pay the fine. The Court of Appeal affirmed their conviction and sentences.
The penalties upheld by the court of appeal mean that Tan, vice-chairman of opposition party Singapore Democratic Party (SDP), will not be able to stand for election to be a Member of Parliament (MP) as he is disqualified. Under Singapore’s Constitution, a person who is convicted of an offence in a Singapore court and fined at least $2,000 or sentenced to at least one year’s jail, will be disqualified from being an MP.
The panel of five judges - Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang, and Steven Chong - noted that a reasonable person reading Wham’s post would conclude that it posed a risk of undermining public confidence in the administration of justice.
“The content of this post objectively and plainly entails a direct attack on the independence and integrity of Singapore’s Judiciary.
“The question is whether a reasonable person coming across this post in these circumstances would conclude that there is a need to guard against the risk that public confidence in the administration of justice would be undermined as a result. This can only be answered affirmatively,” said the judges in their decision.
The judges noted that Wham’s post was accessible to the world and that Wham had held himself as a commentator on social affairs who is knowledgeable on such issues.
“What we have said about Wham’s post would largely apply to Tan’s post as well. Further, Tan’s post could be seen in the news feeds of his 352 Facebook followers and 2,597 Facebook friends.”
The five judges agreed with the High Court judge that fair criticism was not made out for Wham or Tan, and that there was no objective or rational basis for their posts.
The judges stated that Wham’s post as among “the most serious aspersions that one can cast upon a judiciary.
“Wham plainly intended to make that statement and to have it taken seriously. He stood by it, repeated it on several occasions and declined to retract or apologise for it,” they said.
While Tan removed his post before the sentence was passed on him, it was not a mitigating factor as it did not demonstrate remorse, the judges said.
“Tan admitted that he removed his post to put his counsel in a ‘better position to ask the Court for some compassion’.”
Tan sought harsher sentence
Wham and Tan were hauled to court by the Attorney General for contempt by scandalising the court under the Administration of Justice (Protection) Act 2016 after Wham published a Facebook post on 27 April 2018, stating that Malaysia’s judges were more independent than Singapore with cases with political implications.
Wham added that it “will be interesting to see what happens to this challenge” and added a link to an online article titled “Malaysiakini mounts constitutional challenge against Anti-Fake News Act”. His post was also made available to the public.
On 6 May 2018, Tan published a Facebook post stating that “By charging Jolovan for scandalising the judiciary, the AGC only confirms what he said was true”. Tan’s post, which was public, also contained a link to Wham’s Facebook profile.
When the case was heard in the High Court, Justice Woo Bih Li declined to grant the AG’s application that Wham and Tan each publish an apology and that each cease publishing their posts. Wham and Tan were also ordered to pay the AG $5,000 in costs.
Both then appealed their conviction, sentence and costs, while the AG appealed against the judge’s refusal to grant the apology order and the cease publication order.
The apex court also allowed the injunction against Wham to bar him from future publication of his post and to take down the post. But it added that the cease-publication injunction against Tan was not necessary.
Tan’s lawyer, Eugene Thuraisingam, had sought a jail term of several days for Tan on the account that Tan would not be able to run for public office if he were to be fined at least $2,000.
On this, the panel of five judges stated that while Tan was seeking a harsher sentence, his political aspirations were not a relevant factor in sentencing.
The judges noted, “Parliament has enacted a series of disqualifying conditions for aspiring Members of Parliament, and it would bring the Judiciary and the administration of justice into disrepute if we were to impose sentences with an eye towards the political process.
“After all, a court that chooses to impose an inappropriate sentence in order to avoid disqualifying a candidate from standing for election as a Member of Parliament could just as easily do the same thing to achieve the opposite end. In truth, both outcomes are equally abhorrent and impermissible,” they said.
They noted ironically that Tan was asking the court to do the “very thing that he and Wham have improperly accused the judiciary of... to decide his appeal... otherwise than in accordance with its merits.
“We do not condone and will not do that,” they added.
In response to queries from Yahoo News Singapore, an SDP spokesperson said that the party was disappointed that Tan's appeal was dismissed.
“Mr Tan will play, as he has been all these years, a crucial role in the party's electoral campaign. He remains an integral part of SDP family and his commitment and passion to bring democracy to our nation remains undiminished,” the spokesperson added without specifying whether Tan still remained vice-chairman.
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