Singapore Court of Appeal settles basis for the Singapore Courts’ contempt jurisdiction and rules against retrospective application of new contempt laws

Li Shengwu v The Attorney-General [2019] SGCA 20

2019.04.01 Judgment (CA 166 of 2018)

Abraham Vergis and Asiyah Arif of Providence Law Asia are currently defending Li Shengwu, the grandson of Mr Lee Kuan Yew, in contempt of court proceedings initiated by the Attorney-General over a sentence posted in a private Facebook post.

On 1 April 2019, the Singapore Court of Appeal (“CA”) issued its judgment in respect of Shengwu’s preliminary application to set aside the service of the contempt papers on him in the United States. The CA decision was much anticipated because it was addressing, for the first time, questions of a fundamental character such as what is the true basis for the Court’s contempt jurisdiction, which surprisingly was still not settled law in Singapore.

The question on jurisdiction took a dramatic turn before the CA, when the AG decided to abandon the entire legal premise it had run before the High Court and chose instead to argue for the first time that the Court’s contempt jurisdiction is based on its criminal jurisdiction under s 15 of the Supreme Court of Judicature Act (“SCJA”). The CA was critical of the AG’s surprising shift in position: it emphasised that “in discharging his responsibility of safeguarding the public interest, the AG should adopt a clear and consistent position”, and the questions posed by the CA for the AG to answer “did not give parties carte blanche to advance such strikingly different points as would involve the abandonment and reformulation” of a “substantial part of their cases”.

Significantly, the CA also found that it was “unable to derive much assistance” from the very extensive work which the AG had undertaken to trace the legislative history of the Court’s jurisdiction to punish for contempt all the way back to laws enacted in 1873.

Instead, the CA preferred Shengwu’s position that the Court’s contempt jurisdiction is a jurisdiction that is “inherent” to the “institution charged with safeguarding and superintending the proper administration of justice”, and that the Singapore Courts can exercise jurisdiction over a foreign contemnor if the requirements and procedures specified in the SCJA read with the Rules of Court (“ROC”) are satisfied.

Another key issue during the hearing was whether the AG could retroactively apply new provisions in the ROC – which now explicitly allow for contempt papers to be served on persons overseas – even though the new legal provisions only came into force after the date Shengwu posted his private FB post. In seeking to rely on these new provisions, the AG again contradicted his previous position taken in the High Court, where the AG had expressly disavowed reliance on the new provisions of the ROC.

The CA categorically rejected the AG’s submissions that the new provisions should apply retrospectively, and held that there would be a “high degree of unfairness” to Shengwu if this new limb could apply retrospectively, because it would create liability where there previously was none.

The CA similarly rejected the AG’s arguments that two other provisions of the ROC would apply to justify serving the contempt papers on Shengwu overseas. Ultimately, the CA rejected most of the AG’s arguments and ruled that the service of the contempt papers was only justified by reference to O 11 r 1 (n) of the ROC, which deals with claims “made under” a written law.

Because the CA had accepted the majority of submissions made by Shengwu, the Court declined to order that Shengwu pay the AG’s costs despite Shengwu’s appeal not being allowed. The CA noted in this respect that “the AG did not succeed on a number of points and raised several new but unnecessary points on appeal”.