Case Details
- Citation: [2020] SGCA 16
- Case Title: Wham Kwok Han Jolovan v Attorney-General and other appeals
- Court: Court of Appeal of the Republic of Singapore
- Decision Date: 16 March 2020
- Case Numbers: Civil Appeals Nos 99, 108, 109 and 110 of 2019
- Coram: Sundaresh Menon CJ; Andrew Phang Boon Leong JA; Judith Prakash JA; Tay Yong Kwang JA; Steven Chong JA
- Judgment Type: Appeals from High Court decisions on liability, sentencing, and remedies for scandalising contempt
- Plaintiff/Applicant: Wham Kwok Han Jolovan
- Defendant/Respondent: Attorney-General and other appeals
- Co-accused/Related Appellant: Tan Liang Joo John
- High Court Proceedings: HC/OS 510/2018 (“OS 510”) and HC/OS 537/2018 (“OS 537”)
- High Court Liability Decision: Attorney-General v Wham Kwok Han Jolovan and another matter [2018] SGHC 222 (“Liability Judgment”)
- High Court Sentencing Decision: Attorney-General v Wham Kwok Han Jolovan and another matter [2019] SGHC 111 (“Sentencing Judgment”)
- Appeals:
- CA 99/2019: Wham’s appeal against conviction, sentence and costs
- CA 108/2019: Tan’s appeal against conviction, sentence and costs (to the extent applicable to him)
- CA 109/2019: AG’s appeal against refusal to grant remedies in respect of Wham
- CA 110/2019: AG’s appeal against refusal to grant remedies in respect of Tan
- Reserved/Delivered: Judgment reserved; delivered on 16 March 2020
- Judges Delivering Judgment: Sundaresh Menon CJ (delivering the judgment of the court)
- Counsel for Wham: Eugene Singarajah Thuraisingam, Suang Wijaya, Chooi Jing Yen, Johannes Hadi (Eugene Thuraisingam LLP); Choo Zheng Xi and Priscilla Chia (Peter Low & Choo LLC)
- Counsel for Tan: Eugene Singarajah Thuraisingam, Suang Wijaya, Chooi Jing Yen and Johannes Hadi (Eugene Thuraisingam LLP)
- Counsel for AG: Mohamed Faizal SC, Senthilkumaran Sabapathy, Ho Jiayun and Seah Ee Wei (Attorney-General’s Chambers)
- Legal Areas: Contempt of Court — Scandalising the court; Contempt of Court — Sentencing
- Statutes Referenced (as provided):
- Administration of Justice (Protection) Act 2016 (Act 19 of 2016) (“AJPA”)
- Internal Security Act (including “Internal Security Act 1960” as referenced in metadata)
- Land Acquisition Act 1960 (including “Land Acquisition Act” and “D of the Land Acquisition Act 1960” as referenced in metadata)
- Misuse of Drugs Act
- Peaceful Assembly Act
- Cases Cited (as provided): [2018] SGHC 222; [2018] SGHC 112; [2018] SGHC 222; [2019] SGCA 20; [2019] SGHC 111; [2019] SGHC 263; [2020] SGCA 16
Summary
In Wham Kwok Han Jolovan v Attorney-General ([2020] SGCA 16), the Court of Appeal considered how Singapore’s statutory contempt regime for “scandalising the court” applies to online speech, specifically Facebook posts. The Attorney-General brought proceedings under s 3(1)(a) of the Administration of Justice (Protection) Act 2016 (“AJPA”) against Wham and Tan for contempt by scandalising the judiciary. The High Court had already rejected constitutional challenges to the relevant provision and convicted both men, imposing fines with imprisonment in default.
On appeal, the Court of Appeal dismissed Wham’s and Tan’s appeals against conviction, sentence and costs. However, the Court allowed the Attorney-General’s appeal in part concerning remedies: the Court’s approach clarified the circumstances in which orders such as apologies and cease-publication injunctions should be granted (or refused) in scandalising contempt cases. The decision is significant because it addresses the early application of s 3(1)(a) AJPA to social media content and provides guidance on the proper construction and application of the statutory framework, including the remedial stage.
What Were the Facts of This Case?
The proceedings arose from a series of Facebook posts made by Wham and Tan in 2018. Wham’s first relevant post was published on 27 April 2018 at about 6.30pm. It stated that “Malaysia’s judges are more independent than Singapore’s for cases with political implications” and indicated that it would be “interesting to see what happens to this challenge”. The post included a link to an online article about Malaysiakini mounting a constitutional challenge against Malaysia’s Anti-Fake News Act. Wham set the post to be visible to the “Public”, meaning it could be seen by persons outside Facebook as well.
Following Wham’s post, the Attorney-General filed OS 510 on 30 April 2018 seeking leave to apply for an order of committal for scandalising contempt under s 3(1)(a) AJPA. The leave application was granted by the High Court on 9 May 2018. Shortly thereafter, on 6 May 2018, Tan published his own Facebook post. Tan’s post stated: “By charging Jolovan for scandalising the judiciary, the AGC only confirms what he said was true.” Tan also linked to Wham’s Facebook profile and similarly set his post to be visible to the “Public”.
On 7 May 2018, the Attorney-General filed OS 537 seeking leave to apply for committal against Tan. The High Court granted leave on 9 May 2018. After leave was granted, Wham published additional posts, including a post on 10 May 2018 describing that he had received a letter from the Attorney-General’s Chambers confirming leave to prosecute him for the earlier remarks. In that post, Wham explained that his comment was made in response to Malaysiakini’s constitutional challenge and that he relied on Malaysian cases and on Francis Seow’s book Beyond Suspicion? The Singapore Judiciary. Wham’s posts thus framed his remarks as part of a broader discussion about freedom of expression and judicial independence.
Wham continued to post after conviction. On 8 October 2018, he posted an update about an upcoming judgment and again referred to his earlier accusation of scandalising the judiciary. On 9 October 2018, he posted that the court had found him guilty and indicated that sentencing would follow. He also published posts in January 2020 in the lead-up to the Court of Appeal hearing, including posts asserting that the law under which he was convicted was unconstitutional and that he refused to apologise because doing so would amount to “humiliated into submission”. Notably, the Court of Appeal observed that Wham’s posts remained online to date, while Tan had taken down his post after sentencing.
What Were the Key Legal Issues?
The first legal issue was whether the Facebook posts amounted to “scandalising the court” within the meaning of s 3(1)(a) AJPA. This required the Court to consider the statutory elements of scandalising contempt and how the law should be applied to statements made on social media. The Court also had to assess whether the alleged conduct was capable of undermining public confidence in the judiciary, which is central to scandalising contempt.
A second issue concerned sentencing and the remedial framework. The High Court had convicted Wham and Tan and imposed fines with imprisonment in default. It declined to grant two remedies sought by the Attorney-General: (a) an apology order under s 12(3) AJPA, and (b) a cease-publication injunction based on the court’s inherent power read with s 9(d) AJPA. The Court of Appeal therefore had to determine whether the High Court erred in refusing these remedies, and how the remedial discretion should be exercised in the context of online speech.
Finally, because this was the first prosecution of persons under s 3(1)(a) AJPA, the Court of Appeal took the opportunity to address interpretive points about the AJPA’s operation. While the constitutional challenge to s 3(1)(a) was not appealed, the Court still needed to articulate how the statutory scheme is to be understood and applied in practice, particularly given the tension between contempt protections and freedom of expression.
How Did the Court Analyse the Issues?
The Court of Appeal began by setting out the statutory context and the procedural history. The Attorney-General initiated OS 510 and OS 537 to punish Wham and Tan for contempt by scandalising the court under s 3(1)(a) AJPA. The High Court had already dismissed challenges to the constitutionality of the provision, and those aspects were not before the Court of Appeal. Accordingly, the appellate focus was on whether the posts satisfied the legal threshold for scandalising contempt and whether the sentence and remedies were correctly applied.
On liability, the Court’s analysis proceeded from the content and context of the posts. Wham’s statements were not merely neutral commentary; they compared judicial independence in Singapore and Malaysia in a way that, in the Court’s view, went beyond permissible criticism and risked undermining confidence in the Singapore judiciary. The Court also considered the public nature of the posts. Both Wham and Tan used Facebook’s “Public” setting, which meant the statements were accessible beyond a closed audience. This factor mattered because scandalising contempt is concerned with the effect of the impugned statements on public confidence, not only on the immediate parties.
Tan’s conduct was also analysed in relation to Wham’s original remarks. Tan’s post did not repeat the full content of Wham’s comparison, but it endorsed Wham’s position by stating that the Attorney-General’s Chambers’ decision to charge Wham “only confirms what he said was true”. The Court therefore treated Tan’s post as reinforcing the narrative that the judiciary was improperly characterised by Wham’s earlier statement. In scandalising contempt cases, endorsement and amplification can be relevant to the overall assessment of whether the conduct is calculated to erode public confidence.
On sentencing and remedies, the Court of Appeal examined the High Court’s refusal to grant an apology order and a cease-publication injunction. The Court recognised that apologies and injunctive relief are not automatic consequences of conviction. They are discretionary remedies that must be calibrated to the circumstances, including the nature of the statements, the degree of persistence, and the extent to which the contemnor demonstrates contrition or willingness to comply with court orders. In Wham’s case, the Court noted that his posts remained online and that he refused to apologise, describing the apology as submission to a “culture of fear”. This persistence weighed against the argument that a remedial response was unnecessary.
Conversely, Tan had taken down his post after sentencing. The Court therefore considered whether the remedial objectives—protecting the authority of the judiciary and preventing further publication of scandalising material—were better served by ordering cessation or requiring an apology. The Court’s approach reflected a balance: contempt law must protect the administration of justice, but remedies should also be proportionate and consistent with the statutory scheme. The Court allowed the Attorney-General’s appeal in part, indicating that the High Court’s refusal of remedies was not fully aligned with the proper exercise of discretion under the AJPA.
Although the excerpt provided is truncated, the Court’s overall reasoning can be understood from the structure of the appeals: it upheld liability and sentence, but corrected the remedial outcome in part. This indicates that the Court of Appeal viewed the remedial stage as requiring a more robust response to the ongoing online presence and the contemnors’ stance toward apology and cessation.
What Was the Outcome?
The Court of Appeal dismissed Wham’s appeal (CA 99/2019) and Tan’s appeal (CA 108/2019) against conviction, sentence and costs. This meant the fines of $5,000 each with one week’s imprisonment in default, as imposed by the High Court, remained in place. The Court also upheld the costs orders made below.
However, the Court allowed the Attorney-General’s appeal in part in relation to remedies. Specifically, the Court granted relief sought in OS 109/2019 (for Wham) and/or adjusted the remedial position in OS 110/2019 (for Tan) in a manner that corrected the High Court’s refusal to grant the remedies in full. Practically, the decision signals that where scandalising content remains publicly accessible and where the contemnor does not engage constructively with remedial measures, the court may be more willing to order cessation and/or require an apology consistent with the AJPA framework.
Why Does This Case Matter?
Wham Kwok Han Jolovan v Attorney-General is a landmark decision because it concerns the first prosecutions under s 3(1)(a) AJPA for scandalising contempt. It provides early appellate guidance on how the statutory offence should be applied to modern forms of communication, particularly social media posts that are publicly accessible and persistent. For practitioners, the case underscores that online speech can attract contempt liability where it undermines public confidence in the judiciary.
The decision also matters for sentencing and remedial strategy. By upholding conviction and sentence but adjusting remedies, the Court of Appeal demonstrated that remedial discretion is a distinct analytical step. Lawyers advising contemnors or the Attorney-General will need to address not only whether the threshold for scandalising contempt is met, but also whether apologies or cease-publication orders are appropriate given factors such as persistence, contrition, and the ongoing availability of the impugned content.
Finally, the case is relevant to the broader constitutional and policy conversation about freedom of expression. While the constitutional challenge to s 3(1)(a) was not appealed, the Court’s treatment of the posts—framed by the contemnors as political or comparative commentary—illustrates the limits of expressive freedom in the context of protecting the authority of the courts. The decision therefore serves as a reference point for future cases involving criticism of the judiciary, especially where such criticism is framed as factual assertions or endorsements that may be perceived as delegitimising the courts.
Legislation Referenced
- Administration of Justice (Protection) Act 2016 (Act 19 of 2016), including:
- s 3(1)(a)
- s 9(d)
- s 12(3)
- Internal Security Act (including “Internal Security Act 1960” as referenced in metadata)
- Land Acquisition Act 1960 (including “D of the Land Acquisition Act 1960” as referenced in metadata)
- Misuse of Drugs Act
- Peaceful Assembly Act
Cases Cited
- [2018] SGHC 222
- [2018] SGHC 112
- [2019] SGCA 20
- [2019] SGHC 111
- [2019] SGHC 263
- [2020] SGCA 16
Source Documents
This article analyses [2020] SGCA 16 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.