Xu Yuan Chen v Attorney-General: Constitutional Right to Equality and Prosecutorial Discretion
Xu Yuan Chen, Chief Editor of The Online Citizen, appealed against the High Court's decision to dismiss his application for leave to commence judicial review proceedings against the Attorney-General's decision to prosecute him for contempt of court. The Court of Appeal dismissed the appeal, holding that the Attorney-General did not breach Article 12(1) of the Constitution by prosecuting Xu Yuan Chen while not prosecuting Ms. Julie Mary O'Connor, the original author of the contemptuous letter. The court found that Xu Yuan Chen and Ms. O'Connor were not equally situated due to differences in the degree of harm caused, difficulties in investigation, prosecution, and enforcement.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Appeal Dismissed
1.3 Case Type
Constitutional
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
The Court of Appeal dismissed Xu Yuan Chen's appeal, holding that the Attorney-General did not breach Article 12(1) of the Constitution in prosecuting him for contempt of court.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Attorney-General | Respondent | Government Agency | Appeal Dismissed | Won | Sarah Siaw Ming Hui of Attorney-General’s Chambers Jean Goh of Attorney-General’s Chambers Tan Ruyan Kristy SC of Attorney-General’s Chambers |
| Xu Yuan Chen (alias Terry Xu) | Appellant | Individual | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Judith Prakash | Justice of the Court of Appeal | No |
| Tay Yong Kwang | Justice of the Court of Appeal | No |
| Steven Chong | Justice of the Court of Appeal | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Sarah Siaw Ming Hui | Attorney-General’s Chambers |
| Jean Goh | Attorney-General’s Chambers |
| Tan Ruyan Kristy SC | Attorney-General’s Chambers |
| Lim Tean | Carson Law Chambers |
4. Facts
- Xu Yuan Chen, Chief Editor of The Online Citizen (TOC), published an article comprising a letter written by Ms. Julie Mary O'Connor.
- The letter contained allegations that could be considered contempt of court.
- The Attorney-General commenced committal proceedings against Xu Yuan Chen for contempt of court.
- Xu Yuan Chen sought leave to apply for prohibiting orders to prevent the Attorney-General from proceeding with the committal application.
- Xu Yuan Chen argued that the Attorney-General's decision to prosecute him but not Ms. O'Connor breached Article 12(1) of the Constitution.
- Ms. O'Connor is an Australian citizen residing in Australia.
- TOC has a substantial audience and reach compared to Ms. O'Connor's personal blog.
5. Formal Citations
- Xu Yuan Chen (alias Terry Xu) v Attorney-General, Civil Appeal No 68 of 2021, [2022] SGCA 59
6. Timeline
| Date | Event |
|---|---|
| Letter titled “Concerning Omissions – Open Letter to Singapore’s Chief Justice” was published by Ms Julie Mary O’Connor on her blog. | |
| Xu Yuan Chen published an article comprising the Letter on TOC’s website and a post on TOC’s Facebook page. | |
| Deputy Attorney-General declared reasonable grounds to suspect contempt of court. | |
| AGC invited Xu Yuan Chen to withdraw his remarks and apologise to the Judiciary. | |
| Xu Yuan Chen’s solicitors rejected the AGC’s allegations of contempt. | |
| AG commenced HC/OS 694/2021, seeking leave to apply for an order of committal against Xu Yuan Chen. | |
| Leave was granted by the General Division of the High Court. | |
| AG filed HC/SUM 3816/2021 for an order of committal against Xu Yuan Chen. | |
| Xu Yuan Chen filed HC/OS 917/2021, seeking leave to apply for prohibiting orders. | |
| The High Court dismissed OS 917. | |
| Xu Yuan Chen filed an appeal against the Judge’s decision. | |
| Court hearing. | |
| Judgment reserved. |
7. Legal Issues
- Breach of Article 12(1) of the Constitution
- Outcome: The court held that the Attorney-General did not breach Article 12(1) of the Constitution by prosecuting Xu Yuan Chen while not prosecuting Ms. Julie Mary O'Connor.
- Category: Constitutional
- Prosecutorial Discretion
- Outcome: The court held that the Attorney-General's exercise of prosecutorial discretion was not unlawful or irrational.
- Category: Procedural
8. Remedies Sought
- Prohibiting Orders
- Declarations that the Committal Application was in breach of Arts 12(1), 12(2) and 35(8) of the Constitution
9. Cause of Actions
- Contempt of Court
10. Practice Areas
- Constitutional Law
- Criminal Law
- Appellate Litigation
11. Industries
- Media
- Law
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Attorney-General v Datchinamurthy a/l Kataiah | Court of Appeal | Yes | [2022] SGCA 46 | Singapore | Cited for the principle that equality under Article 12(1) of the Constitution means that all persons in like situations will be treated alike. |
| Syed Suhail bin Syed Zin v Attorney-General | High Court | Yes | [2021] 1 SLR 809 | Singapore | Cited for the two-step test to determine whether executive action breaches Article 12(1) of the Constitution. |
| Lim Meng Suang and another v Attorney-General and another appeal and another matter | High Court | Yes | [2015] 1 SLR 26 | Singapore | Cited to explain that Article 12(2) prohibits only specific grounds of discrimination. |
| Muhammad Ridzuan bin Mohd Ali v Attorney-General | High Court | Yes | [2014] 4 SLR 773 | Singapore | Cited for the principle that an application for a declaration can be included in an application for leave to apply for a prohibiting order. |
| Muhammad Ridzuan bin Mohd Ali v Attorney-General | Court of Appeal | Yes | [2015] 5 SLR 1222 | Singapore | Cited for the principle that an application for a declaration can be included in an application for leave to apply for a prohibiting order. |
| Vellama d/o Marie Muthu v Attorney-General | High Court | Yes | [2013] 4 SLR 1 | Singapore | Cited for the principle that the appellant cannot be granted the Declarations under O 53 of the ROC unless he first succeeds in obtaining leave to apply for the Prohibiting Orders. |
| Ramalingam Ravinthran v Attorney-General | Court of Appeal | Yes | [2012] 2 SLR 49 | Singapore | Cited for the factors the Prosecution is entitled and obliged to take into account in making prosecutorial decisions. |
| Daniel De Costa Augustin v Public Prosecutor | High Court | Yes | [2020] 5 SLR 609 | Singapore | Cited for the principle that the fact that an individual faces prosecution, while another who may have committed similar actions does not, does not ipso facto indicate a breach of Art 12(1). |
| Syed Suhail bin Syed Zin and others v Attorney-General | High Court | Yes | [2021] SGHC 274 | Singapore | Cited for the principle that the fact that an individual faces prosecution, while another who may have committed similar actions does not, does not ipso facto indicate a breach of Art 12(1). |
| Quek Hock Lye v Public Prosecutor | Court of Appeal | Yes | [2012] 2 SLR 1012 | Singapore | Cited for the principle that even divergent consequences faced by accused persons in the same criminal enterprise, flowing from their respective charges, were “not per se sufficient to found a successful Art 12(1) challenge”. |
| AXY and others v Comptroller of Income Tax | Court of Appeal | Yes | [2018] 1 SLR 1069 | Singapore | Cited for the principle that the burden of proof lies squarely on the applicant to satisfy the court that the materials before the court disclose a prima facie case of reasonable suspicion in favour of granting the remedies sought. |
| Gobi a/l Avedian and another v Attorney-General and another appeal | Court of Appeal | Yes | [2020] 2 SLR 883 | Singapore | Cited for the principle that while the threshold of proof for an application for leave to commence judicial review is the “very low one” of a prima facie case of reasonable suspicion, “this does not mean that the evidence and arguments placed before the court can be either skimpy or vague and bare assertions will not suffice”. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (2014 Rev Ed) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Constitution of the Republic of Singapore | Singapore |
| Administration of Justice (Protection) Act 2016 (Act 19 of 2016) | Singapore |
| Criminal Procedure Code 2010 (2020 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Article 12(1)
- Equality before the law
- Prosecutorial discretion
- Contempt of court
- Judicial review
- Prima facie case
- Reasonable suspicion
- Equally situated
- Differentiating factors
- Degree of harm
- Level of culpability
- Ease of investigation
- Enforcement
15.2 Keywords
- Constitutional Law
- Equality
- Prosecutorial Discretion
- Contempt of Court
- Singapore
- Judicial Review
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Constitutional Law | 95 |
| Contempt of Court | 90 |
| Administrative Law | 50 |
| Civil Procedure | 30 |
16. Subjects
- Constitutional Law
- Criminal Law
- Judicial Review