Re Attorney-General

The Attorney-General applied in HC/SUM 3816/2021, after obtaining leave in HC/OS 694/2021, to commit Xu Yuan Chen, also known as Terry Xu, for contempt by scandalising the court under s 3(1)(a) of the Administration of Justice (Protection) Act 2016. Mr Xu was the Chief Editor of The Online Citizen (TOC) and, by his own admission to police, the only person with authority to decide what was published on its website and Facebook page.

On 27 January 2021, Julie Mary O'Connor published on her blog an open letter to the Chief Justice about omissions in his Opening of the Legal Year 2021 speech. After she agreed by Facebook message that he could repost it, Mr Xu published the letter with stylistic edits as an article on the TOC website, and a Facebook post sharing the article with an excerpt appeared on the TOC page that morning. Mr Xu refused the Attorney-General's Chambers' demand of 22 June 2021 to remove them. His separate challenge to the proceedings failed in the High Court and the Court of Appeal. TOC went offline in 2021, but the website and page were reactivated in September 2022, with operating rights said to have been transferred to a Taiwanese company. Mr Xu argued that the letter criticised the prosecution service, not the courts, and was fair criticism.

1. Whether the article and the Facebook post impugned the integrity, propriety or impartiality of the courts and posed a risk of undermining public confidence in the administration of justice.
2. Whether the publications were fair criticism of the courts.
3. What punishment and further orders were appropriate.

Read objectively as a whole, the article conveyed that Singapore's courts favour those with money, power or connections with judges, that judges are not selected for their courage to find the truth, and that the courts are complicit in politically motivated persecution and decide cases otherwise than on their merits. Its reference to the system of justice necessarily included the judiciary, and what the author subjectively meant was irrelevant under Shadrake Alan v Attorney-General [2011] 3 SLR 778. Such allegations self-evidently posed a risk to public confidence, and the court rejected Mr Xu's claim about the Attorney-General's motives as pure speculation. He did not dispute intentional publication. The same analysis applied to the Facebook post, whose reach to the page's followers reinforced the risk.

The publications were not fair criticism: no rational basis was offered for the allegations that the rulings concerning Mrs Lee and Mr Li were politically influenced, they were not made in good faith, and they were not temperate or respectful.

On punishment, his culpability was high: as editor he had carefully edited the letter, showed no remorse, refused to remove the material for a prolonged period and removed it only selectively and belatedly. His standing and the reach of TOC were comparable to or greater than the contemnors in Au Wai Pang v Attorney-General [2016] 1 SLR 992 and Wham Kwok Han Jolovan v Attorney-General and other appeals [2020] 1 SLR 804, so a higher fine was warranted. Because he still controlled TOC's content, a deletion order was made, but it did not extend to readers' comments.

The High Court allowed the Attorney-General's application, finding Mr Xu liable for contempt for publishing both the article and the Facebook post; it fined him S$18,000, payable within four weeks with ten days' imprisonment in default, ordered him to delete the article's title and accompanying statement from the TOC website within seven days and to desist from republishing the article and post, and ordered costs of $4,000 for OS 694 and $8,000 for SUM 3816.