* Blogger loses appeal against contempt of court conviction
The Straits Times, 2 Dec 2015
The Court of Appeal yesterday dismissed an appeal by socio-political blogger and gay rights activist Alex Au against a High Court decision which found him guilty of contempt of court by scandalising the judiciary.
While the 62-year-old did not appeal against the sentence, the court noted that the $8,000 fine, which he has paid, was "wholly appropriate".
Judge of Appeal Andrew Phang said Au's article posed a real risk of undermining public confidence in the administration of justice. "It was carefully crafted so as to take the form of insinuations that were just as effective as, if not more effective than, overt or express statements," said Justice Phang.
The case stems from an article published by Au on his Yawning Bread site in October 2013, titled "377 wheels come off Supreme Court's best-laid plans".
In it, he had implied partiality on the part of Chief Justice Sundaresh Menon in the scheduling of two separate challenges against Section 377A of the Penal Code, which criminalises sex between men.
The first challenge was launched by Mr Tan Eng Hong in 2010 after he was caught with a man in a toilet. The other, by gay couple Gary Lim and Kenneth Chee, was filed three months after Mr Tan was allowed to proceed in 2012.
Au wrote of how the couple's case was heard first - and reached the Court of Appeal earlier - even though Mr Tan's challenge preceded theirs. He put this down to "strange calendaring" to allow the Chief Justice to sit on the three-judge panel that would hear the challenge against S377A. Au wrote that the Chief Justice could not do this in Mr Tan's case due to a conflict of interest as he was the Attorney-General when Mr Tan's criminal case was before the courts.
In his judgment yesterday, Justice Phang noted that if Au had merely written that the Chief Justice wanted to hear the gay couple's appeal, he would not have been in contempt.
But Au's article stated that Chief Justice Menon had deliberately delayed the release of High Court Judge Quentin Loh's judgment in Mr Tan's case so that the couple's case would be heard first.
The first challenge was launched by Mr Tan Eng Hong in 2010 after he was caught with a man in a toilet. The other, by gay couple Gary Lim and Kenneth Chee, was filed three months after Mr Tan was allowed to proceed in 2012.
Au wrote of how the couple's case was heard first - and reached the Court of Appeal earlier - even though Mr Tan's challenge preceded theirs. He put this down to "strange calendaring" to allow the Chief Justice to sit on the three-judge panel that would hear the challenge against S377A. Au wrote that the Chief Justice could not do this in Mr Tan's case due to a conflict of interest as he was the Attorney-General when Mr Tan's criminal case was before the courts.
In his judgment yesterday, Justice Phang noted that if Au had merely written that the Chief Justice wanted to hear the gay couple's appeal, he would not have been in contempt.
But Au's article stated that Chief Justice Menon had deliberately delayed the release of High Court Judge Quentin Loh's judgment in Mr Tan's case so that the couple's case would be heard first.
The title of the article and the language used insinuated something "sinister in the alleged deliberate scheduling" of the cases, said Justice Phang. It cannot be said to be fair criticism as it had no rational basis, he added, pointing out that Au had made vague references to "the common view" and cited unidentified sources.
Justice Phang also rejected Au's claim that he had simply summarised an article in The Straits Times on the case, albeit using "a different phrasing". "His 'different phrasing' ended up communicating a wholly different point."
BLOGGER and gay rights activist Alex Au was fined $8,000 yesterday for scandalising the judiciary.
He was punished for an article he posted on his Yawning Bread site in 2013, which had implied partiality on the part of Chief Justice Sundaresh Menon in the way two constitutional challenges against the law criminalising sex between men was handled.
Au, 62, paid the fine yesterday and also delivered a conditional apology after Justice Belinda Ang asked his lawyer, Mr Peter Low, if his client was prepared to offer one.
Au said: "At the hearing, my counsel had argued that I did not make such imputations, but in light of Your Honour's findings, I apologise to the court for those imputations."
Au said: "At the hearing, my counsel had argued that I did not make such imputations, but in light of Your Honour's findings, I apologise to the court for those imputations."
He later told the media he is appealing against the decision to hold him in contempt. He said: "I am confident that I would be fully exonerated on appeal."
The Attorney-General's Chambers, which asked for a fine of at least $10,000 yesterday, launched contempt proceedings against Au for two articles he published in 2013.
In January, Justice Ang found that one of the articles constituted "scandalising contempt" - and risked undermining public confidence in the administration of justice in Singapore.
The article was published on Oct 5. In it, Au referred to two separate challenges to strike down Section 377A of the Penal Code, which criminalises gay sex. One challenge was launched by Mr Tan Eng Hong in 2010 after he was caught with a man in a toilet. The other, by gay couple Gary Lim and Kenneth Chee, was filed three months after Mr Tan was allowed to proceed in 2012.
In his article, Au wrote of how the couple's case was heard first - and reached the Court of Appeal earlier - even though Mr Tan had launched his challenge before them. Au put this down to "strange calendaring" to allow CJ Menon to sit on the three-judge Court of Appeal panel hearing the constitutional challenge against S377A.
But he could not do this in the earlier case due to a conflict of interest, Au wrote, as Mr Menon was the Attorney-General at the time Mr Tan's criminal case was before the courts.
Justice Ang cleared Au of contempt in the second article, published on Oct 12, which referred to legal proceedings brought by a man who claimed he was harassed into resigning from department store Robinsons because he is gay.
Blogger Alex Au found guilty of contempt
Judge rules his first article 'crossed legal boundary' but not his second
By K.C. Vijayan, Senior Law Correspondent, The Straits Times, 23 Jan 2015
Judge rules his first article 'crossed legal boundary' but not his second
By K.C. Vijayan, Senior Law Correspondent, The Straits Times, 23 Jan 2015
BLOGGER Alex Au has been found guilty of scandalising the court with an online article in which he implied that the Chief Justice showed partiality towards a pair of constitutional challenges against the law criminalising sex between men.
The same article also breached the contempt law for imputing there had been "impropriety" on the part of the Chief Justice and another High Court judge in the way the cases were handled.
But the High Court also found that Au's remarks in a second article did not cross the line as he had not suggested that the court as a whole was biased against cases involving homosexuality.
Justice Belinda Ang, in judgment grounds released yesterday, held that the prosecution had not proved beyond reasonable doubt that the second article posed a real risk of undermining public confidence in Singapore's courts.
Prosecutors had taken Au, 61, who is also a gay rights activist, to task for two articles published in his blog, Yawning Bread, in 2013. The first, published on Oct 5, referred to two separate constitutional challenges against Section 377A. One was by Mr Tan Eng Hong in 2010 after he was caught with another man in a toilet. The other, by gay couple Gary Lim and Kenneth Chee, was filed three months after Mr Tan was allowed to proceed in 2012.
In his article, Au wrote that "strange calendaring" allowed the couple's case to be heard first - and reach the Court of Appeal earlier - even though Mr Tan's challenge was launched ahead of it. Au claimed that this was because Chief Justice Sundaresh Menon wanted to be on the three-judge Court of Appeal panel to hear the constitutional challenge against S377A. But he could not do this in the earlier case owing to a conflict of interest, Au wrote, as Mr Menon was the attorney-general when Mr Tan's criminal case was before the courts.
The relevant statements in the first article "crossed the legal boundary and constitute scandalising contempt", said Justice Ang.
The second article referred to legal proceedings brought by a man who claimed he was harassed into resigning from department store Robinsons because he is gay. Au wrote in his blog that he did not have high hopes for the case as his confidence in the judiciary was "as limp as a flag on a windless day".
Prosecutors argued that the second article should be read "collectively" with the first article, but the judge rejected this approach. She said this approach meant that "a weak article when read collectively with a stronger article, might be strengthened and gain notoriety by virtue of the stronger article". She dismissed the charge founded on the second article: "(Au) has not scandalised the court where the second article is concerned and that article is not contemptuous."
She also laid out why there is a need to act against unjustified criticism of the courts. "The court can only effectively discharge (its) function if it commands the authority and respect of the public," she said. While recognising that it was a curb on the freedom of speech, it was a reasonable one. She said Singapore law "recognises that limitations upon freedom of speech are necessary in the public interest..."
She called for further submissions from Au's lawyers Peter Low and Choo Zheng Xi as well as Senior State Counsel Tai Wei Shyong before deciding on the appropriate penalty for Au. Mr Low said he would be consulting his client, while a spokesman said the Attorney-General's Chambers would study the judgment before deciding whether to appeal.
AGC can act against blogger for contempt
By Walter Sim, The Straits Times, 28 Nov 2013
By Walter Sim, The Straits Times, 28 Nov 2013
THE High Court yesterday granted permission for contempt of court action to be taken against blogger Alex Au Wai Pang, but only for one of two articles which had been flagged by the Attorney-General's Chambers (AGC).
Justice Belinda Ang ruled in a closed-door hearing, in which Mr Au's lawyers were allowed to sit in, that the AGC can proceed on the Oct 5 post titled "377 Wheels Come Off Supreme Court's Best-Laid Plans".
But she did not find sufficient basis for contempt on the Oct 12 article "Church Sacks Employee And Sues Government - On One Ground Right, On Another Ground Wrong".
The AGC now has 14 days to apply for an order of committal - the next step for instituting action against contempt of court. After that, it can serve papers on Mr Au, 61, who runs sociopolitical blog Yawning Bread. A hearing date will then be decided.
The AGC alleges that in the earlier post, Mr Au accused the Supreme Court of "deliberately manipulating hearing dates" to let Chief Justice Sundaresh Menon hear an appeal on the constitutionality of Section 377A, which criminalises sex between men.
Mr Au claimed that a seven- month delay between the hearing of businessman Tan Eng Hong's case against Section 377A in March and High Court Justice Quentin Loh releasing his decision last month was "deliberate".
He pointed out how the same judge took just two months to reject a similar case by a gay couple, which was heard in February. This was to allow them to file their appeal first, Mr Au claimed.
The problem with Mr Tan's case, the blogger alleged, was that it was first filed in 2010, when the CJ was the Attorney-General. That meant he would have had to recuse himself from any involvement in Mr Tan's case.
If Mr Tan's case went to appeal first, or if he applied for the appeal to be heard together with the gay couple's case, the CJ would not be able to sit on the three-judge bench for the appeal court's final decision on Section 377A.
That, Mr Au theorised, was behind the seven-month delay.
In the Oct 12 post, Mr Au expressed doubt that the judiciary was capable of making independent judgments on two cases initiated by Mr Wee Kim San Lawrence Bernard, a homosexual man.
Mr Wee lost his first case, in which he sued his former employer Robinsons for discrimination, after the High Court "erroneously decided" it, claimed Mr Au.
He suggested that this would also lead the High Court to rule against Mr Wee in his subsequent application for a declaration that bias against homosexuals is unconstitutional.
The AGC has said it had already given Mr Au "a chance" in July last year, when he put up a post alleging that well-connected people received special treatment in court. The blogger was let off with a warning after he withdrew the article and apologised.
Ahead of yesterday's ex-parte hearing, Mr Au's lawyers, Mr Peter Low and Mr Choo Zheng Xi, argued for the right to oppose the AGC's leave application, saying "it would save judicial time and assist the court to come to a clearer determination at the early stage".
Justice Ang only let the lawyers observe the hearing, but did not allow them to oppose the leave application.
Second pre-trial conference for blogger's case
By Walter Sim, The Straits Times, 19 Dec 2013
By Walter Sim, The Straits Times, 19 Dec 2013
A SECOND pre-trial conference (PTC) for the contempt of court case against sociopolitical blogger Alex Au Wai Pang was yesterday fixed for March 5.
This follows an application that has been made by the Attorney-General's Chambers (AGC) to the Court of Appeal, which will be heard in the week of Feb 24.
In this application, the AGC cited "public interest" in asking the apex court to assess if they have sufficient basis to proceed against the 61-year-old for an Oct 12 article on his Yawning Bread blog.
This is notwithstanding High Court Justice Belinda Ang's decision last month to deny permission for the AGC to proceed for the Oct 12 article. But she gave AGC the green light to do so for an earlier post dated Oct 5.
A closed-door PTC, presided over by Senior Assistant Registrar Wendy Yap, was held yesterday in respect to the earlier article.
Mr Au's lawyer Peter Low told The Straits Times that the move to schedule another PTC in March is "pending the decision at the Court of Appeal, in case there are any consequential procedural matters that have to be attended to".
He added that if the AGC succeeds at the Court of Appeal, the AGC will likely "apply for both cases to be heard together".
In the first article, titled 377 Wheels Come Off Supreme Court's Best-Laid Plans, Mr Au is alleged to have accused the Supreme Court of "deliberately manipulating hearing dates".
In the second article, titled Church Sacks Employee And Sues Government - On One Ground Right, On Another Ground Wrong, Mr Au is said to have accused the judiciary of being incapable of making independent judgments.
Both articles remain online.
In a media statement on Tuesday, the AGC had said: "It is in the public interest that the law in this area is clear, so that there is clarity on what material is, and what material is not, in contempt of court." It said that court rules "expressly permit" an application to be made at the Court of Appeal if permission has been refused by the High Court.
Mr Low's office on Tuesday sent a letter to the AGC, asking for papers related to the Court of Appeal application and to clarify various matters. The AGC yesterday confirmed that the letter has been received.
Apex court's nod sought on Alex Au
By Feng Zengkun, The Straits Times, 18 Dec 2013
By Feng Zengkun, The Straits Times, 18 Dec 2013
THE Attorney-General's Chambers (AGC) has applied to the Court of Appeal for permission to take contempt action against blogger Alex Au Wai Pang for a second article he wrote. The court will hear the application in the week of Feb 24.
Last month, the High Court permitted the AGC to proceed against Mr Au for an Oct 5 article on his blog Yawning Bread. But it rejected the AGC's contempt of court application for a second post on Oct12.
In this second article, entitled "Church sacks employee and sues government - on one ground right, on another ground wrong", Mr Au expressed doubt that the judiciary was capable of making independent judgments on two cases filed by Mr Wee Kim San Lawrence Bernard, a 40-year-old homosexual man.
Mr Wee had lost the first case in which he sued his former employer Robinsons for discrimination, after the High Court "erroneously decided" it, claimed Mr Au.
He suggested that this would lead to the High Court also ruling against Mr Wee in his subsequent application for a declaration that bias against homosexuals is unconstitutional.
In a statement yesterday about its application to the Court of Appeal, the AGC said "it is in the public interest that the law in this area is clear, so that there is clarity on what material is, and what material is not, in contempt of court".
It noted that the rules of court expressly permit it to apply to the Court of Appeal if permission is refused by the High Court.
It said the Court of Appeal will hear the application without Mr Au's presence. But if the court gives permission for contempt action on the second article, the 61-year-old will have "every opportunity to respond to the case against him".
It said the Court of Appeal will hear the application without Mr Au's presence. But if the court gives permission for contempt action on the second article, the 61-year-old will have "every opportunity to respond to the case against him".
Mr Au's lawyers said they wrote to the AGC yesterday to ask for papers related to the new application and to clarify various matters. They also requested to be present at the Court of Appeal hearing since the application "is a matter of public interest and implicates (Mr Au's) liberty".
There is a pre-trial conference today regarding the Oct 5 article.
Blogger Alex Au to appear in court
Pre-trial conference scheduled for Dec 18, hearing open to the public
By Feng Zengkun, The Straits Times, 6 Dec 2013
Pre-trial conference scheduled for Dec 18, hearing open to the public
By Feng Zengkun, The Straits Times, 6 Dec 2013
BLOGGER Alex Au Wai Pang will have to appear in court to respond to allegations that an article he wrote and posted on his blog is in contempt of court.
The Straits Times understands that court documents related to the case have been served on the 61-year-old and a pre-trial conference has been scheduled for Dec 18.
Last week, the High Court gave the Attorney-General's Chambers (AGC) leave to haul up Mr Au for contempt over an Oct 5 post on his socio-political blog, Yawning Bread.
Entitled "377 Wheels Come Off Supreme Court's Best-Laid Plans", Mr Au in his blog allegedly accused the Supreme Court of deliberately manipulating hearing dates so that Chief Justice Sundaresh Menon could hear an appeal on the constitutionality of Section 377A, which criminalises sex between men.
Some 170 civil activists, academics and artists later signed an online statement, which was sent to the media by social worker Jolovan Wham, to support Mr Au, citing the constitutional right to free expression.
The statement agreed that it is important to uphold public confidence in the judiciary but said this cannot mean that judges should not be subject to scrutiny.
"If Mr Au had erred, his claims should be rebutted in public. This would enable Singaporeans to make up their own minds," the statement said, adding that the AGC's action "reflects an overzealous desire to police public opinion".
Responding to media queries about the show of support, the AGC said yesterday that Mr Au's article contains "allegations of wrongdoing by senior judicial officers". It added: "The constitutional right to free speech and expression is not an absolute right, but is subject to limits which are expressly provided for in the Constitution.
"As important as the right to free speech and expression is, the Constitution recognises that our society as a whole must be safeguarded against statements without basis which injure the reputation of persons or lower confidence in the administration of justice."
The AGC added that the hearing to determine whether Mr Au's article is in contempt of court will be open to the public, and he will have "every opportunity to rebut the charge against him".
Mr Au is represented by lawyers Peter Low and Choo Zheng Xi. When contacted, Mr Choo said it was "too premature" to comment on the pre-trial conference at this time.
Contempt: Hearing on blogger put off to today
By Walter Sim, The Straits Times, 27 Nov 2013
By Walter Sim, The Straits Times, 27 Nov 2013
THE High Court adjourned for a day the hearing on the Attorney- General's Chambers' (AGC) application for leave to start contempt action against sociopolitical blogger Alex Au Wai Pang, after one of his lawyers showed up at yesterday's closed-door hearing.
Justice Belinda Ang ordered the delay for parties to make submissions on whether the defence is allowed to sit in at this preliminary stage.
"We will be arguing that we should be allowed to oppose the application at the early stage," lawyer Choo Zheng Xi of Peter Low LLC, who turned up for the hearing on behalf of Mr Au, told The Straits Times. "Alternatively, we should be allowed to hold a watching brief for our client, meaning that we can sit in for the hearing, but we don't make submissions."
The AGC has accused the 61-year-old of "scandalising the judiciary" in two articles he wrote and published on his site, Yawning Bread, last month.
But before it can start action, the AGC must let the court decide if there is enough basis for a case. That was the reason for yesterday's ex-parte hearing, which did not require the presence of the other party - in this case Mr Au, or his representatives.
The articles in question - "377 Wheels Come Off Supreme Court's Best-Laid Plans" on Oct5, and "Church Sacks Employee And Sues Government - On One Ground Right, On Another Ground Wrong" on Oct 12 - dealt with alleged discrimination against homosexuals.
In the earlier post, Mr Au allegedly accused the Supreme Court of "deliberately manipulating hearing dates". A week later, he alleged the judiciary was incapable of making independent judgments.
Both posts are still on the site, which Mr Au, a gay rights activist and the vice-president of migrant workers' group Transient Workers Count Too, began in 1996.
The AGC said it had already given Mr Au "a chance" in July last year, when he put up a post alleging that well-connected people received special treatment in court. The blogger was let off with a warning after he withdrew the article and apologised.
In January, Mr Au apologised for defaming Prime Minister Lee Hsien Loong in an article on his blog. Last year, he was asked to remove a defamatory comment made against Law Minister K. Shanmugam.
AGC wants to take blogger to court for contempt
By Walter Sim, The Straits Times, 26 Nov 2013
By Walter Sim, The Straits Times, 26 Nov 2013
THE Attorney-General's Chambers (AGC) will today seek the High Court's permission to take legal action against blogger Alex Au Wai Pang for contempt of court.
If the judge rules that there is sufficient basis for the case to proceed, court papers will then be served on Mr Au, who will be entitled to a full hearing to decide if he has "scandalised the judiciary", as claimed by the AGC.
The blogger is alleged to have done so through two articles he wrote and published last month on his sociopolitical blog Yawning Bread, the AGC said yesterday.
The AGC's application, filed at the High Court on Nov 14, is over the blog posts "377 Wheels Come Off Supreme Court's Best-Laid Plans", published on Oct 5, and "Church Sacks Employee And Sues Government - On One Ground Right, On Another Ground Wrong", put up on Oct 12.
The AGC claims that in the first post, the 61-year-old had accused the Supreme Court of "deliberately manipulating hearing dates" to allow the Chief Justice to influence a case to determine the constitutionality of Section 377A, which criminalises sex between men.
This year, two similar cases on Section 377A came before the courts.
In one case, which was first filed in 2010, the CJ "would have to recuse himself... since he was the Attorney-General at the time" to avoid a conflict of interest, wrote Mr Au. Thus, the way out for the courts was to actually delay the judgment in this case. This was done so that it could then take into account how the CJ may rule in the second Section 377A case, Mr Au claimed.
In the Oct 12 post, Mr Au allegedly accused the judiciary of being incapable of making independent judgments.
This was over two cases filed by Mr Wee Kim San Lawrence Bernard, a homosexual man.
He lost his first case, in which he sued his former employer Robinsons for discrimination, after the High Court "erroneously decided" it, claimed Mr Au.
He suggested that this would lead to the High Court also ruling against Mr Wee in his subsequent application for a declaration that bias against homosexuals is unconstitutional.
This is not Mr Au's first run-in with the AGC for contempt of court. In July last year, he was let off with a warning after he suggested in a blog post that prominent plastic surgeon Woffles Wu had received special treatment before the Singapore courts. This was after the surgeon was fined $1,000 for abetting an employee to take the rap for two speeding offences.
After the AGC said the post alleged that "our courts are biased towards those whom you describe as well-connected", he withdrew the article and published an online apology.
In his apology, Mr Au admitted that he had committed an act of contempt of court, and that he had "seriously misrepresented various facts". He wrote: "I will not in future put up any post to the same or similar effect."
The AGC yesterday said that Mr Au was already "given a chance" on that occasion.
Mr Au is not required to attend today's hearing.
The AGC added: "Pending the outcome of the leave application, it would not be appropriate to comment on the merits of the contempt application."
Supporters of blogger Alex Au issue statement
Academics, activists, artists express deep concern over AGC's action plan
By Feng Zengkun, The Straits Times, 30 Nov 2013
Academics, activists, artists express deep concern over AGC's action plan
By Feng Zengkun, The Straits Times, 30 Nov 2013
NEARLY 170 academics, civil activists and artists have got behind a statement supporting socio-political blogger Alex Au Wai Pang, who is facing contempt of court action.
His supporters include president of human rights group Maruah Braema Mathi, playwright Alfian Sa'at and former Singapore Democratic Party member Vincent Wijeysingha.
In the statement posted online yesterday, they said they were "deeply concerned" that the Attorney-General's Chambers (AGC) was given permission by the High Court to take legal action against Mr Au after alleging that he had "scandalised the judiciary" in a post he made on his blog Yawning Bread last month. "The right of free expression is enshrined in... our Constitution... The AGC's action reflects an overzealous desire to police public opinion."
On Wednesday, the High Court gave the AGC leave to haul up Mr Au for contempt over his post on Oct 5. Entitled "377 Wheels Come Off Supreme Court's Best-Laid Plans", he allegedly accused the Supreme Court of deliberately manipulating hearing dates to let Chief Justice Sundaresh Menon hear an appeal on the constitutionality of Section 377A, which criminalises sex between men.
The AGC now has about 10 days to apply for an order of committal - the next step for instituting action for contempt of court.
It did not respond last night to queries on the statement backing Mr Au, who is represented by lawyers Peter Low and Choo Zheng Xi.
His supporters said that if the 61-year-old blogger had erred, his claims should be rebutted in public. "We agree it is important to uphold public confidence in the judiciary. However, this cannot mean that our judges should not be subject to scrutiny," the statement said.
"The AGC's action, rather than enhancing confidence in the judiciary, might weaken public confidence. It also implies that the public is not allowed to form opinions on judicial processes."
History behind ‘scandalising the judiciary’
By Andy Ho, The Straits Times, 9 Dec 2013
By Andy Ho, The Straits Times, 9 Dec 2013
THE offence of “scandalising the judiciary” is in the news, after the High Court recently gave the Attorney-General’s Chambers (AGC) the green light to act against Mr Alex Au for this, over a post he made on his blog Yawning Bread.
Britain, where the offence of scandalising the judiciary originated, recently abolished it as a form of contempt of court. But it remains on the law books of common law countries jurisdictions such as Australia, New Zealand, Hong Kong and Singapore.
Experts emphasise that the offence is not meant to shield judicial decisions from reasoned critique. Neither does is it meant to protect judges’ self-esteem. This is clear from the AGC document entitled Understanding Legal Processes: Contempt Of Court. Rather, it serves “to safeguard the integrity of legal proceedings for the benefit of those seeking recourse before the courts”.
A look back at the history of this slightly arcane-sounding offence is interesting.
Historically, it was created in the judgment R. v Almon (1765) to fight off anonymous attacks on the integrity of Lord Mansfield, then the Chief Justice of England. At the time, he was involved in a titanic struggle with another chief justice – and with popular opinion as well.
Though the Almon case is routinely cited to justify why the doctrine is necessary to protect the integrity of and maintain faith in the administration of justice, there is much more to it than meets the eye.
Professor Douglas Hay notes in his recent work, Crown Side Cases In The Court Of King’s Bench (Staffordshire Record Society, 2010), that although widely considered the origin of the contempt of “scandalising the judiciary”, Almon’s pedigree was less than honourable, even if the doctrine it bred has acquired a position of some honour today.
Recall that the Magna Carta Libertatum, or the Great Charter of the Liberties of England, was forced upon King John of England in 1215 by his feudal barons to limit his powers by law. The Magna Carta began the process that would lead to constitutional law in the Anglophone world. It guaranteed the rights to free speech and trial by a jury of one’s peers.
Professor Hay, an expert in the history of English law at York University in Canada, notes that the Almon court sought to limit Mr Almon’s free speech rights and imprison him, for he was the publisher of two anonymously authored pamphlets that criticised Lord Mansfield in the strongest terms.
The pamphlets poked fun at the Chief Justice for being officious, arbitrary, dishonest, politically biased and ignoring or misreading English law by playing fast and loose with precedents – the lifeblood of common law.
In the proceedings, Mr Almon was denied the right to trial by jury for the newly created offence of scandalising the judiciary for which . Significantly, the court did not cite any precedent to justify the move.
Clearly, what is now regarded as a crime had not been so at the time when the early foundations of the common law were laid.
Common law is a system characterised by case law, that is, law developed by judges through their court decisions. In common law, precedents absolutely matter. Yet, no English court had found it necessary to charge anyone with scandalising the judiciary until Almon. There were simply no ancient precedents to justify the new doctrine. Instead, in England, citizens had freely criticised their judges up to that point.
Lord Camden, who was made Chief Justice of Common Pleas in 1762, vehemently opposed Lord Mansfield on the matter, calling the new doctrine one that would kill the right to free speech.
That is, At this time, England actually had two chief justices and they saw the matter in completely opposed ways. So incensed was the public that Mr Almon’s rights to free speech and trial by jury were being abridged that the hearings led to riots, whereupon the police opened fire on rioters, killing some. The Attorney-General then dropped the proceedings, so the prepared opinion in Almon was never delivered. Yet that text, written without hearing defence counsel on the main charges, would become the source and origin of the modern doctrine of scandalising the judiciary. (The text was posthumously published in 1802.)
But Almon was poorly regarded by jurists of the time and the charge of scandalising the judiciary was used in just one more case, R. v Bingley (1770), where the Crown lost. Upon discharge, Mr Bingley resumed his denunciations of the same Lord Mansfield.
Because jurists had found Almon wanting, it quietly fell into disuse for 130 years after its creation. The charge would not be raised until R. v Gray (1900), which cited Almon as sacrosanct precedent established by the English bench.
The Chief Justice in R. v Gray did not examine any constitutional arguments or ancient precedents that Almon might have cited. But, no wonder, for Almon had neither.
Although Almon would come to be regarded in the 20th century as the ancient precedent for the common law doctrine of scandalising the judiciary, it was just 250 years old and had even fallen into disuse for the first 130 years. It did not belong, as many have erroneously assumed, with the very ancient foundations of common law.
Since precedents matter a great deal in common law, and Almon as the originating precedent was grossly deficient, some can argue that scandalising the judiciary may not be good legal doctrine. Unaware of Almon’s politicised background and its unsatisfactory denouement, 20th century judges went on to cite it as hallowed precedent, thus legitimising it.
Perhaps arguments for the doctrine need to be comprehensively reviewed and, if the principle is found to be valid, constitutionally justified 250 years after Almon, and then be codified in a Contempt of Court statute suitable for this day and age.
* AGC's bid to act against blogger turned back
By Ian Poh, The Straits Times, 1 Mar 2014
By Ian Poh, The Straits Times, 1 Mar 2014
THE Court of Appeal yesterday turned back an application for permission to start contempt of court proceedings against sociopolitical blogger Alex Au for his Oct 12, 2013 article, because of a technicality.
But it also told the Attorney-General's Chambers (AGC) it could try again.
"The order we make today is that there is no proper application before us," said Justice Chao Hick Tin, who was speaking on behalf of a three-judge court that also comprised his fellow Judges of Appeal Andrew Phang and V.K. Rajah.
Justice Rajah also made it clear that the case could still be pursued using the correct procedure.
Last November, the AGC applied to the High Court for leave to proceed against Mr Au for two articles published on his blog, Yawning Bread, the month before.
Justice Belinda Ang gave the green light only for the earlier post, made on Oct 5, which allegedly accused the Supreme Court of intentionally manipulating hearing dates.
This post has since been taken down, and a pre-trial conference was fixed on Dec 18 last year for next Wednesday.
But Justice Ang said "no" to action against the post dated Oct 12, which allegedly accused the judiciary of being incapable of making independent judgments. This remains online and could still be accessed yesterday evening.
The AGC had applied to the apex court to pursue its case on the Oct 12 article.
The Straits Times understands that the technicality related to whether the matter was brought to the court as an appeal or as a fresh application.
After yesterday's hearing, for which Mr Au was present in court, an AGC spokesman said it would study the matter further and make the necessary application in due course.
Third pre-trial meet set in Alex Au case
By Ian Poh, The Straits Times, 6 Mar 2014
By Ian Poh, The Straits Times, 6 Mar 2014
A THIRD pre-trial conference for the contempt of court case against blogger Alex Au Wai Pung has been set for March 19.
The case is pending an application by the Attorney-General's Chambers (AGC) for more time to appeal against the High Court's decision to deny permission to bring proceedings against the 61-year-old for his Oct 12, 2013 article.
The AGC had only been given the green light in respect of Mr Au's Oct 5 post on his blog, Yawning Bread, and is out of time to appeal against the decision.
It had applied to the Court of Appeal for permission to proceed. But this was turned back last Friday on a technicality, regarding whether the matter had been brought to the court as an appeal or a fresh application.
Following a pre-trial conference presided over by Senior Assistant Registrar Wendy Yap yesterday, Mr Au's lawyer Choo Zheng Xi told The Straits Times that the proceedings for the earlier post are on hold until the matter has been resolved.
This is because the AGC is likely to apply for both cases to be heard together if it gets the court's approval to proceed on the Oct 12 article, he said.
The post, which allegedly accused the judiciary of being incapable of making independent judgments, remains online.
The AGC had applied last November to the High Court for leave to proceed against Mr Au for the two articles.
But Justice Belinda Ang gave the go-ahead only for the earlier post which allegedly accused the Supreme Court of intentionally manipulating hearing dates. This post has since been taken down.
Blogger accused of painting 'distorted picture' of judiciary
By Selina Lum, The Straits Times, 22 Oct 2014
By Selina Lum, The Straits Times, 22 Oct 2014
GAY rights activist Alex Au had made it seem that there is a "systemic bias" in Singapore's judiciary against cases involving homosexuality.
This was the argument made by Senior State Counsel Tai Wei Shyong yesterday as he urged the High Court to hold Au in contempt of court for two articles he posted on his blog, Yawning Bread, a week apart last year.
Acting for the Attorney-General (AG), he said Au's articles weaved conjecture with fact to "paint a distorted picture" which posed a real risk of undermining public confidence in the judiciary.
But Au's lawyers, Mr Peter Low and Mr Choo Zheng Xi, accused the AG of being "trigger-happy" in taking their client to court on "imputation, innuendo and insinuation". After hearing both sides, Justice Belinda Ang said she will give her decision at a later date.
The first article, published on Oct 5 last year, referred to two separate constitutional challenges against Section 377A of the Penal Code, which criminalises sex between men. The first challenge was by Mr Tan Eng Hong in 2010 after he was caught with another man in a toilet. The other, by gay couple Gary Lim and Kenneth Chee, was filed three months after Mr Tan was allowed to proceed in 2012.
In his article, Au wrote that "strange calendaring" allowed the couple's case to be heard first - and reach the Court of Appeal earlier - even though Mr Tan's challenge was launched first.
Au claimed that Chief Justice Sundaresh Menon wanted to be on the three-judge Court of Appeal panel to hear the constitutional challenge against S377A. However, he could not do this in the earlier case owing to a conflict of interest, Au wrote, as Mr Menon was the AG when Mr Tan's criminal case was before the courts.
Yesterday, Mr Tai alleged that this article insinuated that there was a sinister plan by the Supreme Court to manipulate hearing dates so that CJ Menon could hear the gay couple's appeal.
But Mr Choo argued that all Au said was that CJ Menon was interested in hearing the case because it was important. Nowhere did Au suggest that this was improper or that CJ Menon was partial or had a vested interest in the outcome.
The second article referred to legal proceedings brought by a former employee of department store Robinsons, who claimed he was harassed into resigning because he is gay. Au, 61, wrote in his blog that he did not have high hopes for the case as his confidence in the judiciary was "as limp as a flag on a windless day".
Mr Tai said Au was implying that the judiciary was biased against homosexuality issues and that the courts decide cases based on extraneous considerations.
But Mr Low argued that while Au's language may be colourful, the article was fair criticism and so did not amount to contempt.
If Au is found to be in contempt of court, he could be fined, jailed or both.
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