Attorney-General v Hertzberg Daniel: Contempt of Court & Freedom of Speech
In Attorney-General v Hertzberg Daniel and Others, the High Court of Singapore addressed an application by the Attorney-General for orders of committal for contempt against Hertzberg Daniel, Christine Glancey, and Dow Jones Publishing Company (Asia) Inc. for publishing articles in the Wall Street Journal Asia that allegedly scandalized the Singapore judiciary. The court, presided over by Tay Yong Kwang J, found Dow Jones Publishing Company (Asia) Inc. guilty of contempt, holding that the publications contained insinuations of bias, lack of impartiality, and lack of independence, implying that the judiciary is subservient and a tool for silencing political dissent. The court imposed a fine of $25,000 on the third respondent.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Orders of committal for contempt granted against the third respondent, Dow Jones Publishing Company (Asia) Inc.
1.3 Case Type
Constitutional
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The High Court found Dow Jones Publishing guilty of contempt for publishing articles scandalizing the Singapore judiciary, restricting freedom of speech.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Attorney-General | Applicant | Government Agency | Orders of committal for contempt granted against the third respondent | Won | Walter Woon of Attorney-General’s Chambers Mavis Chionh of Attorney-General’s Chambers Sabrina Choo of Attorney-General’s Chambers Hema Subramanian of Attorney-General’s Chambers |
| Hertzberg Daniel | Respondent | Individual | Matters held in abeyance | Stayed | |
| Christine Glancey | Respondent | Individual | Matters held in abeyance | Stayed | |
| Dow Jones Publishing Company (Asia) Inc | Respondent | Corporation | Orders of committal for contempt granted | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Tay Yong Kwang | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Walter Woon | Attorney-General’s Chambers |
| Mavis Chionh | Attorney-General’s Chambers |
| Sabrina Choo | Attorney-General’s Chambers |
| Hema Subramanian | Attorney-General’s Chambers |
| Philip Jeyaretnam | Rodyk & Davidson LLP |
| Loh Kia Meng | Rodyk & Davidson LLP |
4. Facts
- The Attorney-General applied for orders of committal for contempt against three respondents.
- The application was based on three publications in the Wall Street Journal Asia.
- The publications allegedly contained passages that scandalized the Singapore judiciary.
- The first article insinuated the Singapore Judiciary was a tool of Mr Lee to muzzle political dissent.
- The letter conveyed the impression that Dr Chee was not given a fair chance to defend the case.
- The second article insinuated that the Singapore judiciary was in need of reform.
- The third respondent did not dispute that the law of contempt was a necessary restriction on freedom of speech.
5. Formal Citations
- Attorney-General v Hertzberg Daniel and Others, OS 1131/2008, [2008] SGHC 218
6. Timeline
| Date | Event |
|---|---|
| Article titled “Democracy in Singapore” published in the Wall Street Journal Asia. | |
| Letter by Dr Chee Soon Juan titled “Produce the Transcript, Show the Truth” published in the Wall Street Journal Asia. | |
| Article titled “Judging Singapore’s Judiciary” published in the Wall Street Journal Asia. | |
| Statement filed pursuant to O 52 r 2(2) of the Rules of Court. | |
| Parties appeared before the court for directions at a pre-trial conference. | |
| Decision date. |
7. Legal Issues
- Contempt of Court by Scandalising the Court
- Outcome: The court found that the publications contained insinuations of bias, lack of impartiality, and lack of independence, implying that the judiciary is subservient and a tool for silencing political dissent, thus constituting contempt of court.
- Category: Substantive
- Sub-Issues:
- Allegations of bias
- Lack of impartiality
- Impropriety
- Wrongdoing concerning a judge
- Related Cases:
- [1900] 2 QB 36
- [1984-85] SLR 814
- [1991] SLR 383
- [2006] 2 SLR 650
- Freedom of Speech vs. Law of Contempt
- Outcome: The court held that the law of contempt is a justifiable restriction on the right to freedom of speech and expression, and that the 'inherent tendency' test should continue to govern liability for contempt of court committed by 'scandalising the court' in Singapore.
- Category: Constitutional
- Sub-Issues:
- Justifiable restriction on freedom of speech
- Acceptable limits on freedom of speech
- Inherent tendency test vs. real risk test
- Related Cases:
- [1995] 1 SLR 696
- [2006] 2 SLR 650
- Defence of Fair Criticism
- Outcome: The court rejected the defence of fair criticism, finding that the publications attacked the impartiality of the Singapore judiciary and sought to impute improper purposes to the decisions of the judges.
- Category: Substantive
- Sub-Issues:
- Reasonable argument or expostulation
- Good faith
- Imputing improper motives
- Related Cases:
- [1900] 2 QB 36
- [1936] AC 322
8. Remedies Sought
- Orders of committal for contempt
9. Cause of Actions
- Contempt of Court
- Scandalising the Court
10. Practice Areas
- Constitutional Law
- Criminal Law
- Media Law
11. Industries
- Publishing
- Media
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Attorney General v British Broadcasting Corporation | House of Lords | Yes | [1981] AC 303 | England | Cited to emphasize that the object of contempt of court is to protect the administration of justice, not the dignity of the courts. |
| Attorney-General v Times Newspapers Ltd | House of Lords | Yes | [1974] AC 273 | England | Cited to highlight the public interest in maintaining the authority of the courts for the settlement of disputes and maintenance of law and order. |
| Pertamina Energy Trading Ltd v Karaha Bodas Co LLC and Others | Court of Appeal | Yes | [2007] 2 SLR 518 | Singapore | Cited to reinforce that the doctrine of contempt of court is not to protect the dignity of judges but is rooted in public interest. |
| You Xin v Public Prosecutor and another appeal | Court of Appeal | Yes | [2007] 4 SLR 17 | Singapore | Cited to illustrate the varied nature of contempt of court. |
| Solicitor-General v Radio Avon Ltd | Not Available | Yes | [1978] 1 NZLR 225 | New Zealand | Cited to describe the term 'contempt of court' as inaccurate and misleading. |
| Gopalan v State of Madras | Supreme Court | Yes | (1950) 37 AIR 27 | India | Cited to support the view that the law of contempt is a justifiable restriction on the right to freedom of speech. |
| Ahnee v Director of Public Prosecutions | Privy Council | Yes | [1999] 2 AC 294 | Not Available | Cited to support the view that the law of contempt is a justifiable restriction on the right to freedom of speech. |
| Gallagher v Durack | High Court | Yes | (1983) 45 ALR 53 | Australia | Cited to support the view that the law of contempt is a justifiable restriction on the right to freedom of speech. |
| Wong Yeung Ng v Secretary of State for Justice | Court of Appeal | Yes | [1999] 2 HKC 24 | Hong Kong | Cited to support the view that the law of contempt is a justifiable restriction on the right to freedom of speech. |
| Attorney-General v Lingle & Ors | High Court | Yes | [1995] 1 SLR 696 | Singapore | Cited to uphold the constitutionality of the law of contempt. |
| Attorney General v Chee Soon Juan | High Court | Yes | [2006] 2 SLR 650 | Singapore | Cited for the summary of the law regarding the offence of scandalising the court. |
| Attorney-General v Zimmerman | Not Available | Yes | [1984-85] SLR 814 | Singapore | Cited as a previous conviction of WSJA for contempt of court. |
| Attorney-General v Wain (No 1) | Not Available | Yes | [1991] SLR 383 | Singapore | Cited as a previous conviction of WSJA for contempt of court. |
| Re Application of Lau Swee Soong | High Court | Yes | [1965-68] SLR 661 | Singapore | Cited to explain the term 'inherent tendency' in the context of contempt of court. |
| R v Gray | Queen's Bench Division | Yes | [1900] 2 QB 36 | England | Cited for the definition of 'scandalising the court' and the defence of fair criticism. |
| In re Bramblevale Ltd | Chancery Division | Yes | [1970] Ch 128 | England | Cited to support the principle that the standard of proof in all contempt proceedings is that of the criminal standard. |
| McLeod v St Aubyn | Privy Council | Yes | [1989] AC 549 | Not Available | Cited to support the view that acceptable limits to freedom of speech imposed by the law of contempt vary from place to place. |
| Re Tan Khee Eng John | High Court | Yes | [1997] 3 SLR 382 | Singapore | Cited to support the view that acceptable limits to freedom of speech imposed by the law of contempt depend on the ideas held by the courts about the principles to be adhered to in the administration of justice. |
| Attorney-General v Wong Hong Toy | Not Available | Yes | [1982-1983] SLR 398 | Singapore | Cited for the defence of fair criticism. |
| Lee Hsien Loong v Singapore Democratic Party and Others and Another Suit | High Court | Yes | [2008] SGHC 173 | Singapore | Cited to reaffirm the position that once fair criticism is exceeded, contempt of court is committed. |
| AG v Pang Cheng Lian | Not Available | Yes | [1972-1974] SLR 658 | Singapore | Cited to establish that unfounded attacks on the integrity of the Judiciary or making allegations of bias and lack of impartiality, is contempt of court. |
| R v Odhams Press Ltd & Ors | Queen's Bench Division | Yes | [1957] 1 QB 73 | England | Cited to determine whether the matter complained of is calculated to interfere with the course of justice. |
| Ambard v Attorney-General for Trinidad and Tobago | Privy Council | Yes | [1936] AC 322 | Trinidad and Tobago | Cited for the defence of fair criticism. |
| R v Editor of New Statesman Ex p v DPP | Not Available | Yes | (1928) 44 TLR 301 | England | Cited to support the view that an allegation that the judge is biased (politically or otherwise) or lacks impartiality is contempt of court. |
| R v Fletcher | High Court | Yes | (1935) 52 CLR 248 | Australia | Cited to support the view that the failure to publish “a fair or adequate summary of the reasons of the Court” and/or the omission of crucial facts may result in a publication amounting to contempt of court. |
| R v Brett | Not Available | Yes | [1950] Vict LR 226 | Australia | Cited to support the view that the motive of the writer was an important element in determining whether the criticism was fair. |
| Slim v Daily Telegraph Ltd | Queen's Bench | Yes | [1968] 2 QB 157 | England | Cited to support the view that a belief published in good faith and not for an ulterior motive can amount to “fair comment” even though the belief in question was not reasonable. |
| Attorney-General v Blomfield | Not Available | Yes | (1914) 33 NZLR 545 | New Zealand | Cited to support the view that admitting the defence of justification would, in effect, allow the court hearing the allegation of contempt to “sit to try the conduct of the Judge”. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Section 7(1) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) | Singapore |
| Art 14(1)(a) of the Constitution of the Republic of Singapore (1999 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Contempt of court
- Scandalising the court
- Freedom of speech
- Inherent tendency
- Real risk
- Fair criticism
- Impartiality
- Independence
- Defamation
- Political dissent
- Judiciary
- Administration of justice
- Lee Kuan Yew
- Dow Jones Publishing
15.2 Keywords
- Contempt
- Freedom of speech
- Singapore judiciary
- Defamation
- Political dissent
- Wall Street Journal Asia
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Contempt of Court | 95 |
| Constitutional Law | 75 |
| Defamation | 60 |
16. Subjects
- Constitutional Law
- Contempt of Court
- Freedom of Speech
- Media Law