Case Summaries

Alan Shadrake v Attorney-General

27 May 2011

Media Summary

Alan Shadrake v Attorney-General
Civil Appeal No 212 of 2010

Decision of the Court of Appeal


1     This case arose from an application by the Attorney-General to commit Mr Alan Shadrake (“the Appellant”), the author of Once a Jolly Hangman: Singapore Justice in the Dock, for contempt of court on the ground of scandalising the judiciary (“scandalising contempt”) in relation to certain passages contained in the book.

2     The High Court judge (“the Judge”) found the Appellant in contempt of court for eleven out of fourteen of the impugned statements and sentenced him to six weeks’ imprisonment and a fine of $20,000 (or, in default, two weeks’ imprisonment).

3     The main issues raised in this appeal were encompassed within the following three grounds of appeal relied upon by the Appellant:

(a)     First, in so far as the relevant legal principles are concerned, the Appellant argued that the Judge had erred in his statement of the test for liability for scandalising contempt;

(b)     Second, on the application of the law to the facts, the Appellant argued that the Judge had erred in his interpretation of the passages held to have given rise to the contempt; and

(c)     Third, concerning the sentence imposed, the Appellant argued that the sentence meted out by the Judge was manifestly excessive.

The relevant legal principles

The offence of scandalising the court

4     The Court of Appeal emphasised that the law relating to contempt of court operates against the broader legal canvass of the right to freedom of speech that is embodied both within Article 14 of the Constitution of the Republic of Singapore as well as the common law. The issue is one of balance: just as the law relating to contempt of court ought not to unduly infringe the right to freedom of speech, by the same token, that right is not an absolute one, for its untrammelled abuse would be a negation of the right itself.

5     The Court of Appeal also noted that an act of scandalising contempt is a public injury rather than a private tort. The fundamental purpose of the law on contempt is to ensure that public confidence in the administration of justice is not undermined; it is not intended to protect the dignity of judges.

The “real risk” test

6     Regarding the actus reus (ie, what conduct would be considered as constituting scandalising contempt), the Court of Appeal held that:

(a)     The “inherent tendency” test does not represent the law in Singapore. The “real risk” test, namely, that a statement in question must pose a real risk of undermining public confidence in the administration of justice before it is held to be contemptuous, is the applicable test vis-à-vis liability for scandalising contempt in Singapore. The adoption of the terminology of “real risk” conveys precisely the nature of the legal test to layperson and lawyer alike, thus avoiding controversy and misunderstanding.

(b)     The “real risk” test is an adequate formulation in and of itself and requires no further theoretical elaboration. It is a test that means precisely what it says: Is there a real risk that the impugned statement has undermined – or might undermine – public confidence in the administration of justice (here, in Singapore)?

(c)     The Appellant’s counsel nevertheless attempted to introduce the “clear and present danger” test under the guise of the “real risk” test by arguing that a “real risk” arises only when there is “clear and present danger” to undermining public confidence in the administration of justice. This is a flawed argument. Both concepts do not have the same meaning. The “clear and present danger” test establishes a higher threshold for liability than the “real risk” test. As between these two tests, the “real risk” test is already a weighty one and pays far more attention to the balance between the right to freedom of speech on the one hand and its abuse on the other. This test is the predominant (indeed, almost exclusive) test that applies throughout the Commonwealth.

The concept of fair criticism

7     Regarding the concept of fair criticism, the Court of Appeal held that:

(a)     There is potential ambiguity with regard to the precise role and operation of the concept of fair criticism in Commonwealth case law and (possibly) even legislation. It preferred viewing the concept of fair criticism as going towards liability, as opposed to being a defence, for contempt of court.

(b)     The court ought always to apply this concept, not only in relation to the precise facts and context, but also bearing in mind the following key question throughout: does the impugned statement constitute fair criticism, or does it go on to cross the legal line by posing a real risk of undermining public confidence in the administration of justice – in which case it would constitute contempt instead?

Application of the law to the facts

8     The Court of Appeal agreed with the Judge’s findings that the first, fourth, fifth, seventh, eighth, ninth, tenth, eleventh and thirteenth statements were in contempt. However, contrary to the Judge’s findings, the second and fourteenth statements were found not to be in contempt.

9     The Court of Appeal nevertheless emphasised that the nine statements found to be in contempt (at paragraph 143 of the written judgment):

... scandalise the very core of the mission and function of the judiciary. More than that, their cumulative effect reveals a marshalling of a series of fabrications, distortions and false imputations in relation to the courts of Singapore. While the Appellant is free to engage in the debate for or against capital punishment, he is not free to deliberately and systematically scandalise the courts in attempting to substantiate his case against capital punishment.


10     Regarding the issue of sentence, the Court of Appeal held as follows:

(a)     Sentencing, by its very nature, is neither an exact science nor an arbitrary exercise of raw discretion. The court concerned follows guidelines, but these must not be applied as if they are writ in stone. It must also be noted that there is no starting-point of imprisonment for the offence of scandalising contempt. The sanction imposed – whether it be a fine or imprisonment (or a combination of both) – will depend, in the final analysis, on the precise facts and context of each case.

(b)     The Judge ought not to have granted a discount in the sentence in order to signal that the courts have no interest in stifling legitimate debate on the death penalty and other areas of law. It is clear that debate on the death penalty as well as other areas of law has been – and always will be − open to all. However, when conduct crosses the legal line and constitutes scandalising contempt, it is no longer legitimate and a discount cannot be accorded to the contemnor for abusing his right to free speech.

11     Notwithstanding the fact that the Court of Appeal found two of the eleven statements (originally found to be contemptuous by the Judge) not to be contemptuous, having regard to the other factors, this was still the worst case of scandalising contempt that had hitherto come before the Singapore courts. The Appellant’s conduct therefore merited a substantial custodial sentence.

12     Despite the rejection of a discount, the Court of Appeal emphasised the fact that the Respondent had not filed a cross-appeal against the Judge’s decision on both liability and sentence. Indeed, the Respondent opined that the sentence was not excessive. The Court of Appeal also observed that it had found that two of the statements originally found to be contemptuous by the Judge were not in fact contemptuous (ie, only nine (instead of eleven) out of the original fourteen statements alleged to be contemptuous were found to be contemptuous).

13     In the circumstances, the Court of Appeal affirmed the Judge’s decision in the court below to sentence the Appellant to six weeks’ imprisonment and to a fine of $20,000 (in default of which the Appellant is to serve a further two weeks in prison, with such further term to run consecutively to the first).

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.