jU l 2011 l

Jul 2011 | S i n g a p o r e A c a d e m y o f L aw In Focus 03 The Honourable Chief Justice shares his views on contempt of court issues. 06 Harry Elias SC examines the ambit of acts of contempt in relation to lawyers’ conduct. 12 SC and Tay Yong Seng provide an overview 03 of the law of civil and criminal contempt. 18 Jeth Lee speaks to members of the legal fraternity to find out Cover what contempt of court means to Rules of Court them. 27 A look at the recent decision on the law on contempt of court for scandalising the judiciary.

Insights 27 34 Yap Teong Liang gives guidance on how to deal with challenges in family law practice.

Side Bar 44 Adrian Tan brings us true-life examples of contempt of court around the world. 34

44

July 2011 In Focus Inter Se is a Everything must come to an end and after publishing Inter Se publication of: (and its predecessor) for 22 years, we are sad to announce that this July

2011 issue will be its swansong. It has been quite an experience. Inter Se began as a simple way of disseminating information and reaching out to our members. It started as a four-page SAL Newsletter, which only narrated past events and announced forthcoming activities, that soon morphed into something bigger to include case and legislation updates and thought-provoking articles. Chief Executive With progress came change, bringing about other effective Serene Wee avenues for SAL to further its objectives: e-alerts to members; a tier-1 Editors journal for articles; and online services in the form of LawNet and Eileen Khoo Law Watch for legislation and case updates. Elizabeth Sheares This final issue (unlike another defunct publication’s) contains no Editorial Committee crosswords nor “libels or any hidden mocking messages”; the absence Anita Parkash of which is due solely to a lack of any grouse to air, and not out of Bala Shunmugam Foo Kim Leng deference to the law on defamation, vis-à-vis contempt which is the Ranald Or theme for this issue. The proofs were ready for publication in July 2010 when, as Murphy’s law would have it, news broke of Alan Shadrake’s case 1 Supreme Court Lane, Level 6, Singapore 178879. just as we were about to go to print. Aware that the subject matter was Tel: 6332 4388 Fax: 6334 4940 sub judice and the issue incomplete if the court’s decision was excluded,

© 2011 we thus put the issue on hold till final judgment was delivered, and a case summary could be included. The judgment of the High Court in All rights reserved. No part of this publication may be reproduced, Alan Shadrake’s case was delivered on 3 and 16 November 2010 stored in any retrieval system, or transmitted, in any form or by (see [2011] 2 SLR 445, [2011] 2 SLR 506) and by the Court of Appeal any means, whether electronic or on 27 May 2011 (see [2011] SCCA 26): see also p 27 of this issue for mechanical, including photocopying and recording, without the permission a commentary on the decision of the Court of Appeal. of the copyright holder. We hope you will enjoy this last issue of Inter Se. Q & A with Chief Justice Views expressed by the contributors are not necessarily those of the We have a number of people to thank: Academy, Academy Publishing nor the Editors. Whilst every effort Chan Sek Keong has been made to ensure that Chief Justice Chan Sek Keong and the Executive Committee – for the information contained within their complete trust and unending good humour shown to the team in is correct, neither the Academy, The Honourable Last year, and more recently in your Opening of the Academy Publishing, the contributors charge. nor the Editors can accept any Chief Justice Chan Legal Year speech this January, you spoke about responsibility for any errors or Contributors – who unfailingly delivered despite their heavy Sek Keong shares his omissions or for any consequences proceedings relating to contempt of court. Why is this professional schedules. This periodical would be nothing without their resulting therefrom. views on contempt of an important issue, and have there been any specific ...... input. court with Inter Se. events or trends that have prompted your comments? Adrian Tan – our witty but unwitting “freelance writer” who most Publishing Consultant This is an important issue because it affects public Cindy Koh likely assumed his Jan–Jun 2008 issue contribution would be a one-off confidence in the integrity and impartiality of the request. Design courts in deciding disputes especially where the Our Chief Executive and the Editorial Committee – Inter Se’s think Fariszan Mazlan tank members who still had the energy to come up with themes and contempt directly impugns these judicial values. mediactive sub-topics after a long day at work. Specifically, what I had in mind was the contempt Mediactive Pte Ltd Mediactive – the graphic designers (since May 2003) who came through committed by a few youths wearing T-shirts 31B Kreta Ayer Road imprinted with a picture of a kangaroo, and also the Singapore 088998 each and every time even though the given timeframe for completion Tel: 6242 4987 mysteriously and progressively became shorter with each passing issue. contempt committed by an officious bystander

And lastly, our readers who have supported us through the years.

Thank you! 02 • | 03 In Focus In Focus

from a foreign country to remember this Judges from other particularly in academic They have refrained law of contempt. India against one of our High type of contempt journals, and no such author from imposing deterrent enacted a contempt of Court judges in relation is a common common law jurisdictions may has ever been taken to task sentences on contemnor. court statute some time to a matter which did not law offence. be more tolerant of abuse for what he has written. I cannot say whether this will ago. Other common law concern him. The rationale of and opprobrium being flung change, as it must depend jurisdictions may also have punishing such You have said that at present, on the circumstances of done likewise. Of course, Do you see the laws relating kind of contempt at them, but that does not punishments for contempt each case, especially the the draftsman should also to contempt of court in is to uphold the mean that we should follow of court are unlimited and at gravity of the contempt. take into account the current Singapore developing authority of the the discretion of the judges, state of the law of contempt similarly to or differently from court which is an their example. although the courts have Do you envisage any in common law jurisdictions. those in other jurisdictions? indispensable exercised great restraint in difficulties in the drafting or Future developments in the Are there any aspects of the institution for the the past. Until such offences enforcement of legislation law can also be provided for Singapore judicial, political or administration of have been put into statutory relating to contempt of by enacting an appropriate social system that would have justice. Judges from other appreciate or share the same form, what kinds of contempt court offences, and what provision similar to s 5 of the a unique impact on the nature common law jurisdictions sense of responsibility that of court offences should precautions should be taken Criminal Procedure Code, or penalties for contempt of may be more tolerant of a judge holds with regard be considered particularly to prevent these? save that the referenced court proceedings here? abuse and opprobrium to his office. Scurrilous serious, and what guidelines No, to the first part of the jurisdiction may be widened The law on contempt being flung at them, but remarks, unless firmly dealt should be borne in mind question. None, to the to include all common law of court is fairly well that does not mean that we with, would inevitably by the courts in meting out second part of the question jurisdictions. developed in Singapore. should follow their example. undermine public punishments? so long as the draftsman There are many kinds We do not mind criticism, confidence in the Judiciary. I have mentioned the is familiar with the general Inter Se thanks the Chief of contempt. The more even harsh criticism, of the This is the reason why the more serious offences in principles of contempt Justice for agreeing to this controversial kind is that merits or justice of our courts punish contemnors, my previous comments. and the rationale of the interview. known as “scandalising” the decisions, on grounds that and not, as some people Any baseless allegation that court. It covers allegations are not related to our fitness seem to think, to immunise a judge is not independent, such as that the Judiciary to hold judicial office. and protect themselves especially vis-à-vis the Courts have always accepted criticisms is not independent or Many critics consider from criticism in their work Executive or that he is impartial or that the that the law of contempt is or to restrict freedom corrupt or which undermines which do not impugn their integrity or good judges are pro-Executive obsolete in modern times, of speech. Courts have public confidence in him or faith, such as, that the reasoning of a judge in all cases involving the and some have suggested always accepted criticisms her as a judge, is serious. Government, ie, politically that the best way to deal which do not impugn their As for punishments, is flawed or that he had omitted to take corrupted, or that they have with all allegations and integrity or good faith, the courts have been, into consideration precedents or material “prostituted” themselves, defamatory remarks against such as, that the reasoning up to now, reluctant to facts. We see such criticisms all the time, all implying that they are judges is for the judges of a judge is flawed or that sentence contemnors to not fit to hold judicial office, to ignore them, however he had omitted to take into imprisonment, except for particularly in academic journals, and no such and that they have made baseless they may be. consideration precedents periods that serve as a author has ever been taken to task for what a mockery of their oath Those who do not hold or material facts. We see warning to them not to of office. It is important judicial office may not fully such criticisms all the time, repeat their contempt. he has written.

04 | | 05 In Focus In Focus

From Courtesy to The distinction between courtesy and contempt Contempt is explained with the help of two case scenarios conduct before the court. In this article, I will try involving practitioners. to explain the notion of contempt, particularly with regard to lawyers. In doing so, I will cover those instances of conduct by lawyers, which have been considered by our courts in the Of all the places where law and order context of contempt of court. must be maintained, it is here in these In particular I will be discussing the cases of Ram Goswami v Public Prosecutor [1983– courts. The course of justice must not be 1984] SLR(R) 694 (in which I had a personal deflected or interfered with. Those who involvement) and Re Tan Khee Eng John [1997] 1 SLR(R) 870. By Harry Elias strike at it strike at the very foundations SC, Founder 1 and Consultant, of our society. RAM GOSWAMI Harry Elias Goswami was an advocate and solicitor. Partnership LLP* Any conduct, which has undue interference He agreed to represent two accused persons with the administration of justice, must be (“the clients”) at a trial in the District Court in treated with severity. Singapore, like many other return for an agreed sum, to be paid before the jurisdictions, protects the administration of commencement of trial. The clients only paid justice by empowering judicial officers2 to hold part of the agreed sum by the first day of the persons accountable for conduct amounting to trial. Nevertheless, Goswami acted for them and contempt of court. Contempt of court can take defended them during the Prosecution’s case, two forms: contempt in the face of the court and submitted that there was no case to answer. and contempt in connection with proceedings. The trial was then adjourned to 25 June 1983 for The consequences of contempt can be either the District Judge to consider whether to call the criminal or civil in nature. There have been many Defence. The balance of the agreed sum was still cases recently involving contempt proceedings not paid and Goswami informed the clients that commenced against members of the public. if it were not paid by 25 June 1983, he would The obligations not to cause a contempt of court also extend to legal practitioners in their

* The Author would like to acknowledge the assistance of S Suressh, Partner, Harry Elias Partnership LLP and A Sangeetha, Trainee, Harry Elias Partnership LLP. 1 Morris v Crown Office [1970] 2 QB 114 at 122, per Lord Denning MR. 2 Subordinate Courts Act (Cap 321, 2007 Rev Ed) s 8; Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 7.

06 | | 07 In Focus In Focus

apply to the court to discharge himself. to carry on with the trial meant that of his duty to his client but that In civil practice, it is only in very The day came and the balance was not the clients had to either conduct their would not be contempt. exceptional cases that a lawyer will be paid. Goswami informed the court that defence in person, or engage another The imperative issue is when precluded from discharging himself his clients failed to give him instructions lawyer to defend themselves. Only in a conduct will be more than when he has not been paid.3 The courts since the last hearing and failed to the later case would there have been discourtesy. Goswami’s explanation have recognised that the constitutional pay the agreed fees despite repeated a need for an adjournment. However, to the court was neither discourtesy right to counsel does not allow an promises to do so. In this regard, the District Judge did not ask the clients nor contempt. It was a breakdown accused person to avoid paying his he applied for a week’s adjournment whether they were willing to conduct of client-solicitor relationship due lawyer. The right only entitles the or alternatively to be discharged. their own defence. In the event, had the to the non-payment of agreed accused person to be represented by The District Judge refused his trial judge done so and the accused costs. However, it should be noted the counsel of his choice if the counsel application and found him in contempt persons were willing to conduct their that the Chief Justice did not is willing and able to represent him.4 of court, requiring him to show cause. own defence, this would mean that the address the question of whether In other words, if counsel is not paid, Goswami explained the grounds for trial could continue and there would a lawyer can discharge himself on he is perfectly entitled to discharge applying for a not be any interference with the course the ground that he had not been himself because he is not willing to Any conduct, which discharge and of justice. paid his fees. When the client represent the accused person. has undue interference apologised to the Even if the clients had asked for refuses to pay the agreed fees and It should be borne in mind that court. The District an adjournment to engage new lawyers, does not keep to his side of the Goswami’s decision to discharge with the administration Judge rejected his the Chief Justice was of the view bargain, it seems logical and very himself was not a last minute thing. of justice, must be explanation and that Goswami’s refusal to continue practical for the lawyer to cease He had given prior notice to the clients he was fined $500. acting did not amount to contempt. representing the client. After all, that he would be doing so if they did treated with severity. On appeal, the In this, he relied on the observation in the commercial world, where a not pay him by the date stipulated. then Chief Justice of Stephenson LJ in Weston v Central service provider is not paid for its The clients failed to pay, and failed set aside the conviction Criminal Court [1977] QB 32 at 46 that services, it is the most natural thing also to engage substitute lawyers to and refunded the fine. In essence, not every failure to co-operate or assist for the service provider to withhold take over the case. If there was any the appeal was allowed because the the court is a contempt. Stephenson LJ its services. disruption to the administration of court felt that Goswami’s case did not cited with approval the decision of the This is exactly what Goswami justice because of his discharge, it is go so far as to be beyond the limits of Privy Council in Joseph Orakwue did. He exercised his right to just as much caused by the clients’ non-cooperation or refusal to comply Izuora v The Queen [1953] AC 327 discharge himself when he was action as Goswami’s, if not more so. with the court’s directions so as to where the barrister’s application to be not paid his agreed fees. The fees warrant being considered a contempt excused from court attendance was is an important element in the TAN KHEE ENG of court. The court held that Goswami granted. Later at the same hearing, the relationship between lawyer and In the next case of Re Tan Khee Eng had not intended to delay or hinder the court withdrew the permission. The next client. Many lawyers face the John, the then Chief Justice Yong trial of the clients and the court held day, the barrister did not attend court problem of bad debts, and of trying Pung How directed Tan, an advocate that Goswami’s refusal to carry on did and provided no communication to the to “chase” clients for the moneys not amount to an interference with the court. He was held in contempt for his they promised to pay. Would it then 3 See Singapore Civil Procedure 2007 (G P Selvam gen ed) (Sweet & Maxwell, course of justice. absence. On appeal, the Privy Council be fair for lawyers to be forced to 2007) at paras 64/5/2–64/5/5. In the judgment, the Chief Justice held that the barrister’s discourteous act for clients without a prospect of 4 Balasundaram s/o Suppiah v Public highlighted that Goswami’s refusal conduct might have been a disregard being paid? Prosecutor [1996] 1 SLR(R) 853.

08 | | 09 In Focus In Focus

and solicitor, to appear in court at have reached the right result. Secondly, the reasons for the cases sit in well together and are a stipulated date and time. Tan, however, The difference in outcome is naturally contemptuous act are important consistent. For Tan, the court failed to attend the hearing despite based on the different facts. in the analysis of the cases. gave him a chance to appear and being informed by the court staff and Firstly, unlike Goswami, Tan failed Tan’s reasons for non-attendance discharge himself but he did not do despite the court waiting for almost to attend court. Although that, were many. Tan informed the court so. That was where he acted beyond one-and-a-half hours that afternoon. in itself, does not make him liable for staff that he would not be attending discourtesy. Goswami, in contrast, When asked to show cause, Tan contempt, Tan’s priority in attending the hearing to apply for leave to appeared before the court to explain apologised to the court and explained to another business matter over discharge himself despite being his reasons. His act did not cross into that he had faxed the court staff a letter a scheduled court hearing seems told to do so. He was then asked to contempt because he always acted before the hearing date to inform to suggest that court hearings are attend court to explain his absence. with respect to the court system and that the client had discharged him. unimportant. Moreover, after being Again, Tan did not attend court its procedures. In addition, on the afternoon of the informed that court attendance was claiming he was given very short Despite often being cited as hearing, Tan had faxed another letter to necessary, Tan still refused to attend notice and did not have a counsel’s a vague notion, contempt of court explain to the court that he had other the scheduled court hearing and made robe. Instead, he wanted to write is necessary to protect the courts important business to attend to and the court wait. Such behaviour is more into court to explain. None of the and the administration of justice. requested that the hearing be than discourtesy; it is a rather blatant reasons was legitimate justification The harsh stance taken against re fixed. The Chief Justice did not accept disregard of the court’s authority. for his absence in court. Goswami, those who set upon lowering the the explanation forwarded by Tan and Goswami, however, attended court on the contrary, had a valid reason standing of the courts, reiterates committed him to prison for seven days and made his circumstances known to to not continue the trial. His clients the importance of public confidence because Tan’s conduct was calculated to the District Judge. It can be said that did not pay the fees that they had and trust in the existence of courts. lower the authority of the court. Goswami, although he declined to agreed to despite many requests for While discourtesy may be dealt follow the court’s order to continue to payments. Accordingly, Goswami with by the Law Society, contempt THE COURTESY AND CONTEMPT act for the clients, did acknowledge exercised his prerogative to is a blatant disregard that cannot DISTINCTION the authority of the court, and thus discharge himself. be endured or allowed to breed. The facts in these two cases are different could not be said to be lowering the Jeffrey Pinsler SC, in his As officers of the court, we lawyers and, I submit in each case, the courts court’s authority. book on Ethics and Professional should seek to protect the standing Responsibility5, opined that the and integrity of the court. courts’ approaches in Goswami’s The time has come for a judicial case and Tan’s case were different, pronouncement by the High Court and that Goswami’s case might be that an advocate and solicitor, decided differently today.6 With all whether in a civil or criminal case, due respect, I do not agree with is entitled to discharge himself on Pinsler. The decisions in both the the basis of non-payment of his fees without incurring any breach 5 Academy Publishing, 2007. of professional duty or being in 6 Jeffrey Pinsler SC, Ethics and contempt of court. Professional Responsibility – A Code for the Advocate and Solicitor (Academy Publishing, 2007) at p 139.

10 | | 11 In Focus In Focus

Contempt of Court as it is in the public interest that court orders are obeyed An overview of the law in general. Accordingly, he is punished with the object of of civil and criminal enforcing not just the rights of the party who obtained the contempt, and a look at injunction, but also protecting the authority of the court which recent developments in the 2 face of communication ordered the injunction. and technological Nevertheless, the “criminal-civil” divide is a useful tool in advances. describing the main forms of contempt, and this article will adopt this terminology in discussing contempt.

Civil Contempt Civil contempt is the ultimate recourse for a litigant seeking enforcement of a court order. The court’s power to punish for civil contempt is quasi-criminal in nature. By Ang Cheng Hock SC, Partner, Allen & Gledhill LLP and Tay Yong Seng, Accordingly, Senior Associate, Allen & Gledhill LLP the thresholds for establishing civil contempt are quite high. Introduction First, the person alleging contempt has to Contempt of court is a doctrine rooted in prove (on the criminal standard of “beyond a reasonable the public interest. It exists not to vindicate doubt” which applies to all forms of contempt) that the the dignity of the court or the self-esteem of alleged contemnor had “refused or neglected” to obey the individual judges, but to protect the administration of justice court order.3 and the integrity of legal proceedings.1 In this regard, “refuse or neglect” implies a conscious Contempt is traditionally classified as being criminal or civil. act of volition, unlike a phrase like “fail or omit” which Generally, criminal contempt is seen as an act which threatens indicates a mere failure to comply. Hence the High Court the administration of justice (eg scandalising the Judiciary), has held that the impecunious debtor who cannot satisfy while civil contempt involves disobedience of a court order or a judgment is outside the scope of committal proceedings, breach of an undertaking given to court by a litigant. as he cannot be said to have “refused or neglected” to pay.4 The line between the two forms of contempt is sometimes not clear. For example, a person who breaches a court 2 Pertamina Energy Trading Ltd v Karaha Bodas Co LLC [2007] injunction also interferes with the administration of justice, 2 SLR(R) 518. 3 Order 45 r 5(1)(a), Rules of Court (Cap 322, R 5, 2006 Rev Ed). 1 AG v Hertzberg [2009] 1 SLR(R) 1103. 4 P J Holdings Inc v Ariel Singapore Pte Ltd [2009] 3 SLR(R) 582.

12 | | 13 In Focus In Focus

Instead of contempt, it is a measure of the last resort. Hence, the courts commit Forms of criminal contempt cross-examination, and even the proper recourse against a person to prison for contempt only after other alternative Criminal contempt can take different forms. It can be openly and blatantly accused such a debtor would be options for securing compliance have been exhausted.6 conduct calculated to denigrate the court, or lower its the judge of being biased bankruptcy or winding- authority, by attacking the court’s independence or integrity. in their closing submissions. up proceedings, or some Criminal Contempt It can also take the form of interference with on-going court The two litigants were found other form of execution Criminal contempt is taken seriously in Singapore, with the proceedings. guilty of contempt. proceedings. Judiciary, the Government, and Attorney-General’s Chambers The doctrine of criminal contempt does not exclude Second, where any all taking an active role. fair and objective criticism of judicial decisions. But, as the Conduct procedural step for the The Judiciary takes a very grave view of contempt. Thus, learned Chief Justice has written in his SAcLJ article cited Contempt took on a more exercise of the contempt the learned Chief Justice has written: “… the respect and above, “criticism of judgments should not lead to the unusual form in Attorney- jurisdiction is prescribed, support of the public is crucial to the independence of the denigration of judges” (see also Attorney-General v Tan General v Tan Liang Joo that rule should be Judiciary as an institution ... For acts or words amounting to Liang Joo John [2009] 2 SLR(R) 1132). John [2009] 2 SLR(R) 1132. scrupulously observed and contempt of court, the law provides that every person can be In recent years, criminal contempt has appeared in In that case, three individuals strictly complied with.5 punished, from the President, the Prime Minister, down to the various forms in Singapore: written articles, spoken words, wore T-shirts each imprinted Applying this principle, man in the street.”7 or conduct. with what appeared to be the Court of Appeal in This view is shared by the Government. The Minister for a picture of a kangaroo QU v QV [2008] Law, Mr K Shanmugam, has said that: “In order to make sure Written Articles dressed in a judge’s gown, 2 SLR(R) 702 held that it that we protect the integrity of the judiciary, and to make In 2008, Asia published two within and in the vicinity of is contrary to established sure that people’s confidence in the judiciary is not affected, articles, and a letter from Dr on Singapore. the Supreme Court. notions of justice to punish you have to be very, very strict about anyone who attacks The publications contained insinuations of bias, lack of Even without the use of a person for contempt for the judiciary in scurrilous ways, or calls into question its impartiality and lack of independence on the Judiciary, words, the message was breaching a court order that independence.”8 and implied that the Judiciary was subservient to clear. As the court found, directs a person to do a The Attorney-General plays the role of enforcer. He sees Mr . “a powerful and evocative positive act, where the order “the administration of justice ... [as] a matter of public The High Court found the corporate publisher and image has as much inherent does not specify the time for interest”. Accordingly, as “guardian of the public interest”, proprietor of the journal, Dow Jones, liable for contempt.10 power as a written article to doing so. This is because the the Attorney-General has “the responsibility to institute The High Court also subsequently found the individual editor shake public confidence in person subject to the order contempt proceedings when the integrity and independence responsible for contents of the articles liable for contempt. our justice system. Images would not know when an of the courts of judges is attacked”.9 can convey messages and omission to do the positive Spoken Words meaning by implication and act would constitute a breach Criminal contempt can take place within the courtroom itself association.” of the court order or not. 6 P J Holdings Inc v Ariel Singapore Pte Ltd [2009] 3 SLR(R) 582. when an individual verbally scandalises the judge, or engages In this case, the T-shirts Finally, given that the 7 The Honourable the Chief Justice Chan Sek Keong, “Securing and in acts of disruption, defiance and interference. were a reference to the Maintaining the Independence of the Court in Judicial Proceedings” punishment for contempt (2010) 22 SAcLJ 229. In v Singapore Democratic Party expression “kangaroo court” can involve the draconian 8 Zakir Hussain, “Integrity of judiciary must be protected”, The Straits [2009] 1 SLR(R) 642, two of the litigants, who appeared in in relation to a defamation punishment of imprisonment, Times (5 June 2008). person, repeatedly disregarded and disobeyed the court’s case that was proceeding 9 Attorney-General’s Chambers note on contempt proceedings against directions to desist from asking irrelevant questions in in the High Court. All three Melanie Kirkpatrick, published on the Attorney-General’s Chambers’ 5 Allport Alfred James v Wong website at http://www.agc.gov.sg/docs/Media_Brief_Contempt_of_ individuals were found guilty Soon Lan [1988] 2 SLR(R) 520. Court_Melanie_Kirkpatrick_Wall_Street_Journal.pdf. 10 AG v Hertzberg [2009] 1 SLR(R) 1103. of contempt.

14 | | 15 In Focus In Focus

... the indiscriminate New Developments There has not been much case law dealing Despite the availability of Legislation with internet contempt. However, defamation legal solutions to deal with or inappropriate use Contempt of court has traditionally been found law has developed rapidly to deal with anonymity like that devised of audio recorders by in the common law. However, the Judiciary has libellous statements published on the internet. in New York, there may still expressed its view that contempt should be These principles may provide useful guidance in be practical difficulties with the public in court can clarified, and codified in a statute. The Ministry of relation to articles on the internet which are in enforcement. For instance, distract litigants, or cause Law is currently working on the legislation. criminal contempt of our courts. the website operator embarrassment or inhibition Being ancient in origin, the rules of Hence, it is suggested that, like defamation, hosting the statements contempt also need to evolve with advances in a person who publishes such an article on the which are in criminal to nervous witnesses... communication and technology, through legislation internet should take the risk that it can be read contempt of our courts may or case law. anywhere in the world, and may be liable for be based abroad and not contempt in Singapore if the article can be subject to compulsion by Audio recordings downloaded and read here (see the defamation a Singapore court. For instance, while audio technology can cases of Metropolitan International Schools v It is often argued that enable the verbatim recording of proceedings, Digital Trends [2009] EWHC 1765 at [31] and in such cases it may be the indiscriminate or inappropriate use of audio King v Lewis [2005] EMLR 45). inappropriate to make any recorders by the public in court can distract Accordingly, even if such an article is order at all. On the other litigants, or cause embarrassment or inhibition to published overseas, the Singapore Judiciary hand, there may still be nervous witnesses especially if the subject matter should have jurisdiction to punish the contemnor tangible advantages for the is sensitive.11 here. As a key organ of the State, so long as there court to make an order for Hence, it is a contempt of court in England to is interference with its authority in Singapore, contempt even if it cannot be use audio recorders in court without permission the Judiciary has a legitimate basis for protecting enforced directly. (Contempt of Court Act 1981 (c 49) (UK), s 9). its authority in Singapore from external In these cases, In Singapore, the recent 2010 amendment to the attack (see by analogy the defamation case of the primary object of an Rules of Court has made it contempt to make any Metropolitan International Schools v Digital order for contempt would audio recording of any hearing without the approval Trends [2009] EWHC 1765 at [34]). not be an injunction to of the court.12 Anonymous users on the internet pose prevent further publication, problems of enforcement. In the US, but a reasoned judgment Contempt over the internet a professional model complained in a New York for the salutary purpose The use of the internet means that contempt can court of an anonymous blog on the popular of vindication. This would be committed very quickly, cheaply and to a website, blogger.com, which contained be in line with the original very wide audience. This issue will become more statements libellous of her – the blog called objective of contempt of prominent as the use of the internet becomes her a “skank”. After proving in court that court – to preserve and more prevalent. the statements were libellous, the plaintiff uphold the authority of the successfully persuaded the court to compel court (see also Arlidge, Eady

11 Arlidge, Eady and Smith on Contempt (Sweet & Maxwell, Google, the operator of blogger.com, to disclose and Smith on Contempt 3rd Ed) at pp 755, 758. the blogger’s identity. She turned out to be (Sweet & Maxwell, 3rd Ed) 12 Order 38A r 4, Rules of Court (Cap 322, R 5, 2006 Rev Ed). a rival model. at p 62).

16 | | 17 In Focus In Focus

Views on Contempt of Court What does contempt of court mean to you? Jeth Lee finds out what comes to mind for certain individuals.

By Jeth Lee, Associate, Allen & Gledhill LLP

Contempt of court proceedings rule of law in Singapore. While of article 29(2) of the Universal libel, slander, defamation, contempt is a common law mechanism it is permissible to disagree with Declaration of Human Rights of court or any matter which offends that protects public confidence a judgment, it is not permissible (10 December 1948): “In the against decency or morality or which in the administration of justice. to attack a judge personally just exercise of his rights and freedoms, undermines the security of, or tends Iinterviewed the former Attorney- because the decision is not to everyone shall be subject only to to overthrow, the State”. General Professor SC, someone’s liking. such limitations as are determined Amarjeet Singh SC, Professor Thio The Attorney-General’s by law solely for the purpose of Mr Amarjeet Singh SC: Contempt Li-Ann, Adjunct Professor Kevin Tan Chambers has taken a strict securing due recognition and of court is a common law doctrine and Rachel Leow, a fourth-year law approach to contempt of court. respect for the rights and freedoms which is concerned with interference student at the National University There may be robust debate about of others and of meeting the just with the administration of justice of Singapore, to seek their views the correctness of a decision, requirements of morality, public and the public confidence as to the role of contempt of court the desirability of a particular law or order and the general welfare in placed in it. As with any other in Singapore society, the current the appropriateness of a particular a democratic society.” jurisdiction, the role of contempt governing rules and the desirability policy. All these are acceptable Note that our law on contempt of court proceedings in Singapore of introducing legislation. Here are and even to be encouraged in is the common law as it was is concerned not so much with their thoughts on the matters a democratic society. But the judges developed in England until English protecting the dignity of the court at hand. who apply the law should not have law was codified. Our Constitution but with allowing the courts to their motives questioned or be is based on that of India, function with impartiality and What is the role of contempt of court subjected to vulgar vituperation for article 19(2) of which provides that authority, to maintain law and order in Singapore? doing their duty. the right to freedom of speech and and, where attempts are made to Prof Woon SC: The courts play Lest there be any doubt about expression shall “not prevent the compromise these values, to punish a central and vital role in the this, people should be reminded operation of a law which relates to such offenders.

18 | | 19 In Focus In Focus

Prof Thio: The law on Contempt of court law is interested in engagement but contempt of court is an designed to protect judicial only in abuse and insult. People express ground for reputation (not the reputation who speak to public matters MMr Amarjeet restricting free speech under of the individual judges) in order should demonstrate civility and Singh SC article 14 of the Constitution to safeguard public confidence maturity rather than crassness and of the Republic of Singapore in the administration of justice, carelessness towards the truth. (1999 Rev Ed). It is thus a Prof Thio Li-ann but this must also be balanced They should seek to inform debate, limitation on free speech against the interest in subjecting all not distort and mislead. It is a which is not exceptional in government bodies to well-founded balancing act and the court should any jurisdiction. What is more criticism and scrutiny. Justice be restrained before finding important is what this limit Prakash put it best in Attorney- speech contemptuous, as there on speech is designed to General v Tan Liang Joo John [2009] is the danger they will be seen to serve and the value of free 2 SLR(R) 1132 (“Tan Liang Joo”) be acting in their own interests. speech – they are interests Adjunct Prof when she stated (at [22]) Corruption should be exposed. to be traded off against Kevin Tan “[w]e ought not to be so Poor judicial reasoning should be Prof Walter Woon SC one another. Where the complacent as to assume the critiqued. But criticisms of judicial constitutional balance is to judges and courts are infallible or acts should rest on reasonable be struck, is the question. serves both the individual interest impervious to argument and not bare assertion. Free speech is not an end in in speaking and the public interest human sentiment”. itself. It is designed to serve in hearing and evaluating critical It is a balancing act Further, in Adjunct Prof Tan: There are two Ms Rachel Leow objectives such as truth, democratic speech. This is balanced against and the court should be affirming that main functions of contempt of argument and accountability. the public interest in ensuring there was court proceedings. The first is to There is no right to misinformation, that the court’s reputation is not restrained before finding legitimate ensure that orders and instructions as the House of Lords in Reynolds v impugned by scurrilous, abusive speech contemptuous, as criticism, she of the court are obeyed; and the Times Newspapers Ltd [1993] 3 All and recklessly false allegations. gave reasons for second, is to ensure that nothing ER 961 affirmed. Thus, untruthful What is important is that neither there is the danger they the purpose of is done to hamper the work of the or inaccurate speech has scant interest should be treated as will be seen to be acting free speech. She court or hinder or impinge on its constitutional value and warrants a trump, but both public interests stated (at [19]) independence in the conduct of little, if any, protection. Speech that in critical speech and in maintaining in their own interests. that “temperate, judicial duties. confuses, distorts and misleads judicial reputation should be Prof Thio Li-ann balanced criticism undermines public debate and only optimalised and given due weight. allows for Ms Leow: Contempt of court facilitates misinformed opinions. Not every criticism of the court will rational debate protects the administration of That said, citizens in a harm the administration of justice. about the issues raised and justice and the functioning of the democratic society must have For instance, sour grape litigants thus may even contribute to the court system for the benefit of the right, where a basis exists, are bound to gripe and one must improvement and strengthening litigants and the general public. to criticise the workings of have faith in the maturity of citizens of the administration of justice. There appears to be an emphasis institutions. This aids both to discern truth from falsehood and Scurrilous and preposterous attacks on protecting the reputation and accountability and transparency – give due credit to the hardiness of ... are likely to have the opposite integrity of the courts and judges. facets of the rule of law. It also the court in withstanding criticism. effect”. A shouting person is not

20 | | 21 In Focus In Focus

What are your views on the current contempt cases are circumspect purposes. The law of contempt However, the judge went on common law rules governing about drawing parallels between protects the administration to reason that the limits to be contempt of court? the law of contempt and of justice and preservation of placed on freedom of speech Mr Amarjeet Singh SC: What is defamation although both relate to the public interest, whilst the and expression depend on the the appropriate test to determine the rights to freedom of speech and law of defamation protects an social mores of a country and contempt of court where it is expression. individual’s reputation. As such, would vary among nations. Due to alleged that the court has been Broadly speaking, the allegation the judge rejected the application Singapore’s small size and the fact scandalised by a person’s conduct of scandalising a court or judge of the defence of fair criticism that judges decided both issues or publication? Have our courts is considered as the equivalent as such a defence would further of law and fact, contempt had to adopted the correct test? of defamation of the court or expose the integrity of the courts be more firmly dealt with through The questions posed need some individual judge. In Attorney- to unwanted attacks. The judge the inherent tendency test. conceptual clarification. General v Hertzberg Daniel [2009] also added that a defence This approach is in harmony with The law has developed tests 1 SLR(R) 1103 (“Hertzberg”), of justification, if mounted, stated common law principles. for determining whether on the the learned trial judge held that the would also likely fail as that would In a recent appeal from the facts there has been contempt, parallels between the two branches be tantamount to a judge trying Mauritius Supreme Court, the Privy namely, the “inherent tendency” of law should not be drawn the contempt to try the conduct of Council stated that the need for test and the “real risk” test. In as they exist for the judge. the offence of scandalising the contrast, the fair criticism test is different The court went on to court on a small island is greater a test that is apposite to the law deal subsequently with the than in the UK as justice is more of defamation. Judges trying appropriateness of the other two vulnerable in the former. tests. In both the Hertzberg and Plainly then, tensions do Tan Liang Joo cases, the courts exist between the proponents upheld the inherent tendency of the freedom of expression test. The real risk test, which is and the adherents that support now employed in the UK, Australia protection of the Judiciary from and Canada, was rejected. baseless attacks. Yet, there must In the case of Tan Liang Joo, exist reasonable restrictions the learned judge acknowledged upon expression or publication that the real risk test in other that fairly protect the rights and common law jurisdictions was reputations of others. It is in adopted to protect the right to determining these restrictions that free speech and expression there difficulties have no doubt arisen. and that the broader inherent tendency test was considered Ms Leow: The inherent tendency to inhibit the right to freedom test that is currently applied of speech and expression to an is too strict compared to the real unjustifiable degree. risk test which strikes a better

22 | | 23 In Focus In Focus

balance between freedom of Order 52 of the Rules of Court speech and the need to protect (Cap 322, R 5, 2006 Rev Ed) and the administration of justice. section 7 of the Supreme Court The fair criticism defence has of Judicature Act (Cap 322, 2007 been applied too narrowly given Rev Ed) empower the High Court the broad reading of mala fides. and Court of Appeal to punish The defences of fair comment contempt with no upper limit of and justification are also not sentence. This is presumably set to recognised. Overall, the rules are meet the contingency of the worst very harsh. cases. However, any sentence imposed by the High Court can at What are your views on the current any time be reduced or remitted penalty guidelines for contempt of by it where an accused purges his court? contempt. This is in contrast to apology is tendered to the court. Mr Amarjeet Singh SC: Contempt the Contempt of Court Act 1981 The exercise by the court of of court law in Singapore, apart (UK) which provides a ceiling for its discretion in sentencing for from the applicable common punishment of contempt with contempt, helped by the general law, exists in various statutes. imprisonment of two years in guidance contained in You Xin, The Penal Code (Cap 224, 2008 a superior court and one month in should remain. Rev Ed) deals with contempt in an inferior court. connection with the furnishing of A sound principle was Is legislation the way to go? If false information and the refusal of recommended by the High Court so, what are the proposals you signing statements or the taking of in You Xin v Public Prosecutor would make if legislation were oath. Section 8 of the Subordinate [2007] 4 SLR(R) 17 (“You Xin”) promulgated? Courts Act (Cap 321, 2007 Rev Ed) where the court said that the Mr Amarjeet Singh SC: provides for an upper limit of power to imprison should only The Contempt of Court Act 1981 punishment in the Subordinate be imposed in the most serious (UK) introduced a strict liability Courts. The Criminal Procedure cases. The court further added that rule in respect of publications Code (Cap 68, 1985 Rev Ed) has the seriousness of the contempt which tended to interfere with somewhat similar provisions, could be judged by reference the administration of justice allowing Subordinate Court to the likely interference with pertaining to legal proceedings. judges to punish for contempt or the administration of justice and A “substantial risk” test was to refer the case for prosecution. the culpability of the offender, adopted. Essentially, the concern These provisions have served to the latter being the key factor. in the UK was over juries being inform the public of the penalties On a review of the cases thus influenced by newspapers and in respect of contemptuous acts far in Singapore, the sentences other forms of communication and to guard against excessive imposed by the courts have been making revelations about cases penalties. restrained and reasonable – initiated. The new law banned such especially where a genuine commentary if a warrant of arrest

24 | | 25 In Focus In Focus Shadrake Alan v Attorney-General in respect of a crime suspect had in compliance – all of which been issued or upon his arrest have the effect of restoring the [2011] SGCA 26 until his discharge or acquittal. court’s primacy. The common law applies outside A look at the recent decision this limitation. Adjunct Prof Tan: Yes, I think on the law on contempt of court for scandalising the No similar problem appears to legislation is a good way to go. judiciary. exist in Singapore necessitating I would insert a “real likelihood” legislation. Here, all questions test into the proposed legislation. By Justin Yeo Rong Wei and Calvin of law and fact are decided by In other words, the words uttered Liang Hanwen, Justices’ Law Clerks, Supreme Court of Singapore a judge. Judges are unlikely or written should have a real to be influenced by similar likelihood of bringing the courts publications. The existence of into disrepute or challenging its On 27 May 2011, the Court of statutory provisions in Singapore independence. Appeal handed down its judgment alongside developed common law in Shadrake Alan v Attorney- principles, dealing with both civil Ms Leow: Yes, legislation is General1 (“Shadrake”). and criminal contempt, has served preferable. Since we appear to The judgment has yet to the community well. have abandoned recent common be the subject of detailed Background to the appeal However, if legislation is law developments in contempt and commentary. However, This case arose from an application by the Attorney- contemplated, then it must be a more protective attitude is taken a preliminary examination of 2 General (“the Respondent”) to commit Alan Shadrake comprehensive and consolidate towards public figures, legislation the judgment in Shadrake (“the Appellant”), the author of Once a Jolly Hangman: all statutory and common law would be more theoretically suggests that it clarifies the Singapore Justice in the Dock4, for scandalising principles applied locally (subject defensible than basing current law on contempt of court contempt in relation to fourteen statements contained to any reform adopted) so that contempt rules on traditional for scandalising the judiciary in the book. it is a convenient one-stop rationale. It would also be more (“scandalising contempt”) in In the High Court, the trial judge (“the Judge”) reference on the law of contempt certain, especially regarding a number of ways. This article found that eleven of the fourteen impugned statements in both civil and criminal cases. sentencing guidelines. provides a brief background to amounted to scandalising contempt (reported in Whilst a ceiling may be set in the case as well as a summary of Attorney-General v Shadrake Alan5 (“Shadrake 1 respect of the penalties to be Inter Se thanks Prof Walter the various issues raised in the 3 (HC)”)). He sentenced the Appellant to six weeks’ imposed, no minimum penalties Woon SC, Mr Amarjeet Singh SC, judgment. imprisonment and a fine of $20,000 (in default of should be set because of the Prof Thio Li-ann, Adjunct Prof Kevin which, two weeks’ imprisonment, to run consecutively multifarious nature of the offence Tan and Ms Rachel Leow for their to the first term of imprisonment) (reported in and because the court has the time in granting us this interview. 1 Shadrake Alan v Attorney-General [2011] SGCA 26. Attorney-General v Shadrake Alan6). coercive power of demanding 2 Shadrake Alan v Attorney-General an appropriate apology or have [2011] SGCA 26. the contemnor do something 4 Alan Shadrake, Once a Jolly Hangman: Singapore Justice in 3 Readers are advised to read the the Dock (Strategic Information and Research Development judgment in Shadrake Alan v Centre, 2010). Attorney-General [2011] SGCA 26 in full in order to better understand 5 Attorney-General v Shadrake Alan [2011] 2 SLR 445. the court’s decision. 6 Attorney-General v Shadrake Alan [2011] 2 SLR 506.

26 | | 27 In Focus In Focus

On appeal, the Appellant The issue was one of balance: just as the law relating justice” [emphasis in original].16 However, given the Disagreeing with the Judge in argued that: (a) the Judge had to contempt of court ought not to unduly infringe the potential for controversy and misunderstanding, the Shadrake 1 (HC)23, the Court of erred in his statement of the right to freedom of speech, by the same token, that Court of Appeal agreed with the Judge that adopting Appeal held that the concept test for liability for scandalising right was not an absolute one, for its untrammelled the “real risk” test was preferable because it conveyed of “the public” cannot differ contempt. In particular, the abuse would be a negation of the right itself.9 precisely the nature of the test for liability to layperson according to different factual Appellant contended that whilst The Court of Appeal also reiterated the sentiment and lawyer alike.17 matrices (although the Court of the Judge correctly adopted the of the Judge below that scandalising contempt Appeal noted that these matrices label of a “real risk” test, he erred was a public injury rather than a private tort.10 The The content of the “real risk” test were the relevant backdrop in defining the content of the said fundamental purpose of the law on contempt was to Eschewing attempts to “elaborate upon a legal test against which to ascertain whether test; (b) the Judge had erred in his ensure that public confidence in the administration whose efficacy is to be demonstrated more in its or not public confidence in the interpretation of the statements of justice was not undermined; it was not intended to application rather than its theoretical elaboration” administration of justice had held to have given rise to the protect the dignity of judges.11 [emphasis in original],18 the Court of Appeal held that been – or might have been – contempt; and (c) the sentence “the ‘real risk’ test is adequate in and of itself and, undermined).24 meted out by the Judge was The test for liability hence, does not require further elaboration” [emphasis Second, the Court of Appeal manifestly excessive. The Court of Appeal considered, in detail, the in original].19 The “real risk” test meant precisely clarified that in applying the legal principles relating to the test for liability for what it said, viz, is there a real risk that the impugned “real risk” test, the court must The Court of Appeal’s scandalising contempt. statement has undermined – or might undermine – avoid either extreme on the legal reasoning public confidence in the administration of justice (here, spectrum, viz, of either finding that The Court of Appeal heard the Rejection of “inherent tendency”, adoption of “real risk” in Singapore)?20 Despite holding that the “real risk” contempt has been established appeal on 11 April 2011 and The Court of Appeal in Shadrake12 noted that although test required no further theoretical elaboration,21 the where there is only a remote or delivered its judgment on 27 May the decision of Attorney-General v Wain Barry J13 Court of Appeal found it necessary to make several fanciful possibility that public 2011. It dismissed the appeal and, (“Wain”) was interpreted in subsequent decisions clarifications regarding the test. confidence in the administration of while differing from some of the of the High Court to have established the test for First, the Court of Appeal clarified that in justice is (or might be) undermined; findings of the Judge, upheld the liability as that of “inherent tendency” (viz, that the determining whether there was a “real risk”, the or finding that contempt has sentence meted out. words complained of must have an inherent tendency court concerned must make an objective decision as been established only in the most The Court of Appeal began by to interfere with the administration of justice), there to whether or not that particular statement would serious situations (such as where observing that the law relating to did not appear to be any clear authority for such a undermine public confidence in the administration there is a “clear and present contempt of court operated against test.14 Indeed, it noted that a holistic reading of Wain15 of justice, as assessed by the effect of the impugned danger” of public confidence being the broader legal canvass of the suggests that the decision did not intend to divorce statement on the average reasonable person.22 undermined).25 In this regard, right to freedom of speech that was the test for liability from the “actual or potential the Court of Appeal rejected the embodied both within Article 14 of impact on public confidence in the administration of Appellant’s counsel’s contention the Constitution of the Republic of 16 Shadrake Alan v Attorney-General [2011] SGCA 26 at [56]. that a “real risk” arises only when 7 Singapore (the “Constitution”) as 9 Shadrake Alan v Attorney-General [2011] SGCA 26 at [17]. 17 Shadrake Alan v Attorney-General [2011] SGCA 26 at [57]. there is “clear and present danger” 8 well as the common law. 10 Shadrake Alan v Attorney-General [2011] SGCA 26 at [21]. 18 Shadrake Alan v Attorney-General [2011] SGCA 26 at [29]. 11 Shadrake Alan v Attorney-General [2011] SGCA 26 at [21]. 23 See Attorney-General v Shadrake Alan 19 Shadrake Alan v Attorney-General [2011] SGCA 26 at [29]. [2011] 2 SLR 445 at [52]. 12 Shadrake Alan v Attorney-General [2011] SGCA 26. 7 Constitution of the Republic of 20 Shadrake Alan v Attorney-General [2011] SGCA 26 at [36]. 24 Shadrake Alan v Attorney-General Singapore (1985 Rev Ed, 1999 Reprint). 13 Attorney-General v Wain Barry J [1991] 1 SLR(R) 85. 21 Shadrake Alan v Attorney-General [2011] SGCA 26 at [29] [2011] SGCA 26 at [34]. 8 Shadrake Alan v Attorney-General 14 Shadrake Alan v Attorney-General [2011] SGCA 26 at [52]. and [36]. 25 Shadrake Alan v Attorney-General [2011] SGCA 26 at [17]. 15 Attorney-General v Wain Barry J [1991] 1 SLR(R) 85. 22 Shadrake Alan v Attorney-General [2011] SGCA 26 at [32]. [2011] SGCA 26 at [29] and [36].

28 | | 29 In Focus In Focus

of undermining public After undertaking an extensive survey of the Second, the Court of Appeal confidence, because:26 (a) the two Commonwealth case law, legislation and the reports found that limiting the scope of fair tests were clearly not the same as of various law commissions and committees, the criticism to criticism raised through the latter would encompass the Court of Appeal found that it was ambiguous as to the formal legal avenues (eg, the former but not vice versa;27 whether the concept of fair criticism was a (a) separate relevant court proceedings or the (b) the “clear and present danger” defence; or (b) an issue of liability forming an integral removal mechanism provided for test was inextricably linked to the part of the process of analysis as to whether or not in Article 98(3) of the Constitution) United States’ unique culture and the impugned statement was in contempt in the first was too onerous a limitation on the constitutional position (ie, the place.31 However, the Court of Appeal noted that the right to free speech.38 In the court’s First Amendment to the United precise approach to adopt was not merely a theoretical view, an alleged contemnor should States Constitution), which did issue as it had implications on the burden of proof. not be precluded from proffering not represent the position in In the final analysis, the Court of Appeal found that fair criticism merely because he most Commonwealth jurisdictions the nature, tenor and thrust of the Commonwealth or she did not have the means, or in general and Singapore in authorities were more consistent with the concept of did not choose, to air his or her particular;28 and (c) the “real risk” fair criticism as going towards liability.32 Given that rationally supported criticisms via test was already a weighty test scandalising contempt was quasi-criminal in nature, this any of the formal legal avenues.39 which paid more attention to the approach had the additional benefit of ensuring that balance between the right to the alleged contemnor was not disadvantaged vis-à-vis Application of the law to the freedom of speech on the one hand the burden of proof inasmuch as the evidential burden impugned statements and its abuse on the other. would be on the alleged contemnor while the legal On the facts, the Court of Appeal burden would be on the applicant to prove beyond a disagreed with the Judge’s finding The concept of fair criticism reasonable doubt that the impugned statement did not that the second and fourteenth Fair criticism – liability or defence? constitute fair criticism. public confidence in the administration of justice – in statements were in contempt. A few commentators in this issue which case it would constitute contempt instead?35 However, it agreed with the Judge’s of Inter Se have referred to “fair The applicable principles vis-à-vis fair criticism In so far as the scope of fair criticism was finding that the first, fourth, fifth, criticism” as a defence.29 This was The Court of Appeal held that the various factors set concerned, the Court of Appeal rejected two seventh, eighth, ninth, tenth, also the characterisation adopted out (albeit non-exhaustively) in Attorney-General v arguments raised by the Respondent. First, the eleventh and thirteenth statements by the Judge in Shadrake 1 (HC).30 Tan Liang Joo John33 remained instructive.34 The court Court of Appeal found that limiting the scope of fair were in contempt. The Court of would apply the concept of fair criticism, bearing criticism to criticism that did not call into question Appeal was firm in its view that in mind the following question: does the impugned the independence, impartiality and integrity of courts these nine statements:40 26 Shadrake Alan v Attorney-General 36 [2011] SGCA 26 at [38]. statement constitute fair criticism, or does it go on to was overly restrictive on the ambit of fair criticism. 27 Shadrake Alan v Attorney-General cross the legal line by posing a real risk of undermining Indeed, this would render the concept of fair criticism scandalised the very core of [2011] SGCA 26 at [39]. nugatory, since most allegedly contemptuous the mission and function of 28 Shadrake Alan v Attorney-General statements, by their very nature, call into question the [2011] SGCA 26 at [41]. 31 Shadrake Alan v Attorney-General [2011] SGCA 26 at [58]–[77]. 38 Shadrake Alan v Attorney-General independence, impartiality and integrity of courts.37 29 See Jeth Lee, “Views on Contempt of 32 Shadrake Alan v Attorney-General [2011] SGCA 26 at [68] [2011] SGCA 26 at [85]. Court”, Inter Se (July–December 2011) and [80]. 39 Shadrake Alan v Attorney-General at pp [24]-[32]. 33 Attorney-General v Tan Liang Joo John [2009] 2 SLR(R) 1132 at 35 Shadrake Alan v Attorney-General [2011] SGCA 26 at [86]. [2011] SGCA 26 at [85]. 30 Attorney-General v Shadrake Alan [15]−[23]. 36 Shadrake Alan v Attorney-General [2011] SGCA 26 at [84]. 40 Shadrake Alan v Attorney-General [2011] 2 SLR 445 at [70]–[76]. 34 Shadrake Alan v Attorney-General [2011] SGCA 26 at [86]. 37 Shadrake Alan v Attorney-General [2011] SGCA 26 at [84]. [2011] SGCA 26 at [143].

30 | | 31 In Focus

the judiciary. More than that, contempt proceedings.44 It went on to clarify that there their cumulative effect reveals was no starting-point of imprisonment for the offence a marshalling of a series of of scandalising contempt.45 Law Practice Series: fabrications, distortions and The Court of Appeal also disagreed with the false imputations in relation to Judge’s granting of a discount in the sentence in order The Law of Torts the courts of Singapore. to signal that the courts have no interest in stifling legitimate debate on the death penalty and other areas The Court of Appeal continued of law, holding that:46 in Singapore by emphasising that:41 [i]t is clear that debate on the death penalty as well “The work is impressively comprehensive. [w]hile the Appellant is free as other areas of law has been – and will always The authors have dealt with each and every area to engage in the debate for be − open to all. However, when conduct crosses of the law of torts in the Singapore context in an or against capital punishment, the legal line and constitutes scandalising insightful – yet readable – manner. Also extremely he is not free to deliberately contempt, it is no longer legitimate and, helpful is the judicious (and, I would add, novel and systematically scandalise ex hypothesi, a discount cannot be accorded to as well as effective) use of diagrams which aid in the courts in attempting to the contemnor for doing the very thing which is an the excellent exposition at crucial junctures of substantiate his case against abuse of the right to free speech in general and the the work itself ... a pioneering work on Singapore capital punishment. right to engage in legitimate debate with regard tort law but also one that simultaneously reflects to the topic (or topics) concerned in particular. the international character and flavour that is the Sentencing [emphasis in original] result of an increasingly interconnected world.” The Court of Appeal began its analysis on sentencing by noting Nonetheless, the Court of Appeal affirmed the — Boon Leong JA that sentencing, by its very nature, sentence meted out by the Judge, because: first, the Highlights: was neither an exact science Respondent did not file a cross appeal against the nor an arbitrary exercise of raw Judge’s decision on both liability as well as sentence; • structured and accessible account discretion.42 The court concerned and, second, two of the statements originally found of the various torts and their inter- was to follow guidelines, but these to be contemptuous by the Judge were not in fact relationships were not to be applied as if they contemptuous. • doctrinal and policy issues discussed were writ in jurisprudential stone.43 with reference to significant Singapore, In this regard, the Court of Appeal Conclusion English and Commonwealth precedents outlined, non-exhaustively, some This case raised – in some instances for the very first as well as relevant statutes of the more common sentencing time before the Court of Appeal – important issues guidelines in the context of relating to the law of contempt. In addressing these • textual exposition supplemented Author: Gary Chan Kok Yew by useful diagrams, illustrations and issues, the Court of Appeal clarified certain aspects of Extent: 800 pages (approximate) the law relating to scandalising contempt. specific examples to help the reader Publication date: August 2011 41 Shadrake Alan v Attorney-General better understand the main legal [2011] SGCA 26 at [143]. 42 Shadrake Alan v Attorney-General concepts and techniques [2011] SGCA 26 at [146]. 44 Shadrake Alan v Attorney-General [2011] SGCA 26 at [147]. 43 Shadrake Alan v Attorney-General 45 Shadrake Alan v Attorney-General [2011] SGCA 26 at [148]. [2011] SGCA 26 at [146]. 46 Shadrake Alan v Attorney-General [2011] SGCA 26 at [154]. Drop us an e-mail at [email protected] and place your order today!

Contact details: Tel No: (+65) 63320041 By E-mail: [email protected] www.sal.org.sg/ebookshop 32 | Insights Insights

THE ETHICS OF FAMILY LAW PRACTICE Guidance on dealing with the challenges INTRODUCTION faced by family law practitioners. The practice of family law is both challenging and unique in that it offers the practitioner, in the course of advising the client and in the conduct of the case, the opportunity to address the financial purse strings of the children and wife and provision of a roof over their head, and to shape families in one way or another. The advice which a family law practitioner gives to the client may have a positive or negative impact on the client and perhaps even to the extent of the children involved in the dispute. The family law practitioner therefore has an important and essential role to play as the family unit, whether kept intact or broken down, is nevertheless still an important part of the By Yap Teong Liang, fabric of society. Family law Proprietor, T L Yap & Associates disputes, whether resolved

34 | | 35 Insights Insights

amicably or which are as he considers will be (as the case may be) as counsel or solicitor, in promoting in his own issues on custody care and emotionally charged and most advantageous to the which is not supported to believe or disbelieve sphere the cause of justice. control and access of the acrimonious undoubtedly client so long as it does not by his client or his client’s instructions, If therefore, a solicitor children in giving his advice comes at a cost to those conflict with the interests of instructions … unless he himself has becomes aware in the to the client. The family law involved in the dispute. justice, public interest and personal knowledge of the course of proceedings that practitioner ought not to For these reasons, the family professional ethics.” The fundamental matter or unless his client’s his client is obstructing the impose his personal views law practitioner’s ethical The advocate and principles which can be culled statements are inherently interests of justice, it is his on the issue. obligations are critical, solicitor’s duty not to from the rules set out above incredible or logically duty to advice his client However, it could be serious, extensive and mislead or deceive the court are firstly, the advocate and impossible. His duty to his as to the conduct which argued that as part of the meaningful. is entrenched in r 56 of the solicitor’s duty to advance his client does not go beyond he ought to follow and if family law practitioner’s There are no guidelines Rules which states that: client’s interests is subject to advising him of the folly of the client still persist[s] duty to the client, the or best practices specifically “An advocate and solicitor his position of officer of the making incredible or illogical in his wrong conduct, he advocate and solicitor setting out the ethical shall not knowingly deceive court and his duty to assist in statements.” should decline to act for ought to advise the client of obligations of family lawyers. or mislead the Court, any the administration of justice. In Public Trustee v By him further.” the nature and scope of the The starting point ought other advocate and solicitor, Secondly, the advocate and Products Traders Pte Ltd With these fundamental fiduciary duty a parent owes to be the Legal Profession witness, Court officer, solicitor must not accept [2005] 3 SLR(R) 449, principles, I now explore a child and the concept of (Professional Conduct) Rules or other person or body instructions if to do so V K Rajah J (as he then some scenarios which the best interests of the (Cap 161, R 1, 2010 Rev Ed) involved in or associated would contravene any rule was) said (at [57]): “In the a family law practitioner child. In educating the client (“Rules”), case law and a with Court proceedings.” of law or ethics or would final analysis, solicitors, as may encounter in the course of his or her obligations as touch of common sense. As a Of equal importance for otherwise be improper in the officers of the court, must of his instructions in a a parent and the factors the first step, it might be argued the advocate and solicitor circumstances of the case in their dealings with the family dispute. court will take into account that a family law practitioner to note is r 59(a) of the Rules and thirdly, the advocate court, acknowledge that as a matter of law in ought to explore the which governs the drafting and solicitor must not their obligations to the court DUTY TO CONSIDER BEST deciding issues of custody possibility of reconciliation of affidavits or pleadings. contravene any law or rule reign supreme, over and INTERESTS OF FAMILY AND care and control, and for with the client rather than This rule provides that: of ethics concerning the above their client’s and their CHILDREN? that matter access, the delving into the rights and manner in which he obtains own interests.” There is no duty imposed on family law practitioner can obligations a spouse has in An advocate and instructions to act. In Yee Chang & Co Ltd v an advocate and solicitor to steer the client to take into divorce proceedings and solicitor shall not Further guidance on N V Koninklijke Paketvaart consider what is in the best account the best interests ancillary matters. contrive facts which an advocate and solicitor’s Maatschappij [1958] interests of the family as a of the child. will assist his client’s ethical obligations can be MLJ 131, a case involving a whole and of the children. A family law practitioner LEGAL PROFESSION case or draft any gleaned from three cases. In settlement during the course The Rules and case law do should refrain from (PROFESSIONAL CONDUCT) originating process, Wee Soon Kim Anthony v of litigation and when one of not impose such a duty. suggesting to a client who RULES pleading, affidavit, the parties refused to follow To determine what is in seeks custody care and Rule 54 of the Rules states witness statement or [1988] 1 SLR(R) 455, Chan the agreement reached, the best interests of the control of a child of the that: “Subject to these notice or grounds of Sek Keong JC (as he then Whyatt CJ said “... a solicitor children, the family law marriage that he or she Rules, an advocate and appeal containing— was) said (at [21]): “It is not owes a duty to the Court practitioner is guided by should remove the child solicitor shall conduct (a) any statement of for an advocate and solicitor, to conduct litigation with the law on the approach of from the other parent each case in such a manner fact or contention whether in his capacity due propriety and to assist the courts in dealing with or to take the child out

36 | | 37 Insights Insights

of jurisdiction without first it is prudent on the part of COMMUNICATION WITH Access Evaluation Report, that even in such a case, to know directly from the obtaining a court order. the family law practitioner WELFARE OFFICER/ generally, there should not notification should be given family law practitioner Whilst it may seem that by to find out the reasons for COUNSELLOR OR CHILD be direct communication to the other side of such about the interviews, giving such a suggestion the client taking such an PSYCHIATRIST with the welfare officers communication. instead of hearing it from it satisfies the client’s approach rather than simply Is it ethical for a family law or the Family Court the parent. In a similar vein, objective, the family informing the other side practitioner to communicate counsellors by the family PREPARING CLIENT FOR the process and procedure law practitioner may of the client’s position and directly with the welfare law practitioner. This is INTERVIEW can be explained but the inadvertently be acting litigating the issue in court. officer/counsellor or child to avoid any allegation The client will be child should not be told against the child’s and The reasons of the client psychiatrist who is preparing of trying to influence the interviewed by the welfare what to say to the welfare client’s interests when the may not be good reasons the welfare report? If the outcome of the report. officer/counsellor or child officer/counsellor or child matter eventually comes which the court would court calls for a welfare If communication is psychiatrist in the course psychiatrist. before the court. accept. If so, the client report to be prepared by necessary, it is suggested of the preparation of the If a client insists that should be advised that his the Ministry of Community that such communication be welfare report. What is the BREACHING A COURT access should not be granted position may be untenable Development Youth and in written form and copied extent to which a family law ORDER to the other parent or that in court and to reconsider Sports or for a Custody to the other side. practitioner can prepare the A family law practitioner access should be reduced, some form of access. Evaluation Report or If a child psychiatrist client for the interview? It is must avoid giving any advice is appointed by the proper to prepare the client or making an application to court pursuant to r 41 by explaining the process court which is tantamount to of the Women’s Charter and procedure of how such assisting the client to breach (Matrimonial Proceedings) interviews are carried out a court order. An illustration Rules 2005 (Cap 353, R 4, and the purpose of the is provided by Jeffrey 2006 Rev Ed), the Letter of interviews. Part of the legal Pinsler SC in Ethics and Instruction to the expert advice is to explain to the Professional Responsibility1 witness is copied to the client this process. However where the client instructs other side. Similarly, coaching or telling the the solicitor to make an there should not be direct client what to say should application to court to allow communication with the be avoided. The report the client to travel with the child psychiatrist without prepared by the welfare child to for the the other side being copied officer/counsellor or child Christmas holidays. The real on the correspondence. psychiatrist is submitted intention of the client (and However, if the child to the court as evidence this is known to the solicitor) expert is jointly appointed which the court can rely is to obtain the passport by both parties by on to make a decision. of the child to travel to agreement, there is scope The interview of the client for the contention that is akin to a witness giving 1 Jeffrey Pinsler SC, Ethics and a party should be able to evidence. Professional Responsibility – A Code for the Advocate and communicate directly with A situation may arise Solicitor (Academy Publishing, the expert. It is suggested where the child may want 2007) at p 116, para 05-033.

38 | | 39 Insights Insights

Indonesia, which breaches an advocate and solicitor becomes aware that his client has the court order. The solicitor committed perjury or has otherwise been guilty of fraud upon must advise the client that the Court, the advocate and solicitor— he would be in breach of his (a) may apply for a discharge from acting further in the case; duty to the court if such an or application was made as he (b) if required to continue, shall conduct the case in such would be deceiving the court a manner that it would not perpetuate the perjury or fraud. and the ultimate purpose is to breach a court order. Rule 58 makes it the duty of the advocate and solicitor to cease Even if the solicitor is to act. It provides that: unaware of the client’s intention but suspects that An advocate and solicitor shall cease to act for a client if— the client intends to breach (a) the client refuses to authorise him to make some disclosure the court order or deceive to the Court which his duty to the Court requires him to the court, the solicitor make; should advise the client of (b) the advocate and solicitor having become aware during his legal position in having to the course of a case of the existence of a document which comply with the court order. should have been but has not been disclosed on discovery, It is instructive to note the client fails forthwith to disclose it; or the comment by the learned in his affidavit of assets and that the client not disclose (c) having come into possession of a document belonging author that “very special means, it would be incumbent the existence of the asset on to another party by some means other than the normal care is necessary when an on the solicitor not to partake the pretext that it is for the and proper channels and having read it, he would thereby advocate and solicitor’s in the non-disclosure. Instead, other side to discover the be embarrassed in the discharge of his duties by the actions affect children”. the solicitor should advise the non-disclosure. This would knowledge of the contents of the document. client of the legal obligations be a wrong approach as the FULL AND FRANK to make full and frank obligation to make full and MEDIATION DISCLOSURE disclosure and the fact that frank disclosure rests with Is there an ethical obligation on the part of a family law practitioner A party has the obligation the client will be signing the the deponent of the affidavit. to inform the client of the benefits of mediation as an alternative to make full and frank affidavit of assets and means Rules 57 and 58 of the dispute resolution process to enable parties to reach a settlement disclosure of his assets and under oath, and any false Rules set out circumstances as opposed to litigation in court? There is a strong arguable case means. If the solicitor is information provided may when an advocate and that there is such an obligation. Although mediation in the Family informed by the client that expose the client to perjury. solicitor ought to discharge Court process is voluntary, the client should know the alternative he has an asset, for example, Sometimes the client will himself from acting for a ways of resolving the marital dispute. Further, by being able to take a bank account or a property, ask the solicitor, in a similar client. Rule 57 provides that: ownership of the outcome of the dispute by agreeing to the terms which he does not want scenario, what he should of settlement, the client avoids the possibility of a dissatisfactory his spouse to know about do. To represent the client’s If at any time outcome following a court decision. It avoids an appeal and saves and hence does not wish to interest, it may be tempting before judgment is cost for the client. Time is also saved as the dispute is resolved disclose such information for the solicitor to suggest delivered in any case, faster and in the interests of the parties and the children as they

40 | | 41 Insights Insights

can move forward in their a retainer, an advocate and advice, the advocate solicitor loses objectivity in the course of representing the administration of justice lives. These positive factors solicitor shall advance the and solicitor is under and “becomes the client”. their clients. A family law and his fellow advocate and gravitate towards the client’s interest unaffected a duty to ensure that Care should be taken when practitioner with a clear solicitors. In the event of obligation of a family law by .... (b) any interest of any the person is not writing letters to the other objective mind, coupled doubt, it is always preferable practitioner informing the other person.” under an impression side based on client’s with a conciliatory approach, to err on the side of client and perhaps even to Rule 53A states that: that his interests instructions. The use of will go a long way in helping caution when faced with an the extent of encouraging “An advocate and solicitor are protected by inflammatory, sarcastic, rude the parties resolve their ethical issue. an attempt at mediation. shall not take unfair the advocate and or inappropriate language marital dispute. A best practices guideline It is only if mediation is not advantage of any person or solicitor. and threats must be avoided for professionalism in the successful that parties have act towards anyone in a way as it serves to be counter- CONCLUSION practice of family law should to litigate in court. which is fraudulent, deceitful The litigant in person may productive. The appropriate The challenge family law be created. Such a best or otherwise contrary to be emotional, unreasonable respect and courtesy must practitioners face daily is to practices guideline will LITIGANTS IN PERSON his position as advocate and aggressive in his be accorded to a fellow find the delicate balance of be an important first step In divorce proceedings, and solicitor or officer of dealings with the family law member of the profession. having to follow the client’s in helping to guide family the family law practitioner the Court.” practitioner. He may even The parties are already instructions (often the law practitioners in their may encounter the litigant Rule 30 states that: be abusive. It is suggested embroiled in a dispute pressure exerting, emotional, work in representing clients in person as his opponent that communication be between themselves and non-objective client), in marital disputes which instead of a fellow advocate (1) An advocate and reduced in writing to avoid there is no need for the failing which there may are often emotional and and solicitor. What then solicitor or any misunderstandings of solicitors to be embroiled in a be serious repercussions, traumatic for the client and are the ethical obligations member of his law telephone conversations, and dispute amongst themselves, and the duty to the court, the children involved. imposed on the solicitor? firm or any director or meetings with the litigant in The basic fundamental employee of the law person be kept to a minimal approach is to inform the corporation of which and have a third party litigant in person that he the advocate and present during the meetings, should seek independent solicitor is a director if possible. The family law legal advice as the family or an employee shall practitioner has a duty to the law practitioner cannot decline to advise court to assist the court in a advise him and must avoid a person whose hearing where the litigant in being put in a position of interests are opposed person is present and may conflict. It must be made to that of a client he not know the procedures of clear to the litigant in is representing on the court. person that you do not any matter and shall represent his interest and inform such person to RELATIONSHIP BETWEEN you are not his solicitor. obtain independent FAMILY LAW PRACTITIONERS Guidance can be sought legal advice. The family law practitioner from rr 25, 53A and 30 of (2) If the person does should not become personally the Rules. Rule 25 states not obtain such involved in the client’s case. that: “During the course of independent legal To do so may mean that the

42 | | 43 Side Bar Side Bar

[T]he Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the [Courthouse]. Each lawyer shall be entitled to As Your Honour be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage A pupil researches in one (1) game of ‘rock, paper, scissors.’ The winner of this Displeases true-life examples of contempt of cour engagement shall be entitled to select the location for the t around the world. 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006.

4. The two chastened lawyers met a day later. Not surprisingly, they agreed on the venue. They did not need to play rock, paper, By Adrian Tan, Director, scissors, but they realised that if they didn’t, they would technically To Pupil Master D rew & Napier LL C be disobeying a court order. They applied to court for permission From Yoof bin Naif, Pupil not to play the game. The judge agreed, holding, “With civility Messrs Rob Lye & Kon, Advocates & Solicitors restored (at least for now), it is ordered that the motion is granted.”

Opinion on Contempt of Court 5. The wisdom of the judge is shown in the phrase “at least for now”. Clearly, he was very familiar with litigators. 1. You have asked me to research the law regarding contempt of court. 6. It is important to obey all court orders, not just those which one 2. Contempts of court have traditionally been classified as being either criminal or civil. finds important. In a Darwin Magistrates Court, a magistrate warned In England, the general approach has been that a criminal contempt is an act which a woman whose cell phone had rung that she and “anyone else in so threatens the administration of justice that it requires punishment from the public court” would get into trouble if they did not turn their phone off. point of view; whereas, by contrast, a civil contempt involves disobedience of a court Minutes later, a 17-year-old let his mobile phone ring with the music order or undertaking by a person involved in litigation ( of American rapper Akon before he answered the call while sitting Contempt Arlidge, Eady & Smith on (Sweet & Maxwell, 3rd Ed, 2005) at p 143). in the front row of the court. The magistrate told the teen, “If I hear one more word from you, you’re going to be in custody.” The teen, 3. Punishment for contempt of court is available in the being a teen, could not resist the challenge, and so answered, Management v. Wausau Underwriters Insurance United States as well. In Avista “My bad.” The magistrate sent the teen to the court cells for 2006), a hotel investment firm sued an insurance company US Dist for Courtallegedly Mid not Dist paying Fla (June 6, three hours. an insurance claim. The opposing lawyers bickered from the start, unable to agree on any matter. They were not even able to agree on a venue to depose a witness, and 7. “One of the problems that seems to be developing within our referred the matter to court. United States District Judge Gregory A Presnell was not community,” the judge opined from the bench, “is that there is so amused. After chastising the attorneys for not being able to agree on even the most much time devoted by schools and others to telling people what simplest of things, Judge Presnell issued his written ruling: their rights are, without the corresponding lessons being taught as to what people’s obligations are.”

44 | | 45 Side Bar Side Bar

New Zealand lawyer Dr Rob Moodie – he appeared in court to answer 8. Parents of defiant teenage children may wish to consider moving contempt charges for unauthorised disclosure of confidential to Darwin. information. He decided to contest the charge by dressing as a woman.

9. Please note that the contempt of court in the above case was the 14. “I will now, as a lawyer, be wearing women’s clothing,” he said. refusal to obey the court’s instruction not to utter “one more word”. “The deeper the coverup, the prettier the frocks.” He also said that he It was not the ringing of the mobile phone per se. Indeed, the Orlando would prefer to be called “Miss Alice” in court. Sentinel reported a case where a woman’s cell phone was thrown in the trash after it rang in Circuit Judge Anthony Johnson’s courtroom. 15. unfortunately, the Australian High Court was not persuaded by the Circuit Judge Johnson found McRoy, 28, in contempt after she ingenuity of Dr Moodie’s arguments, and found him in contempt for admitted she didn’t check to see whether her phone was off when her disclosing confidential information. After the ruling was announced, sister, who had used it outside the courtroom, returned it. The judge Dr Moodie declared that he would no longer practice law at all, ordered the phone to be destroyed. Sadly for the anti-cellphone crowd, nor would he continue to wear dresses, because he no longer needed the appeals court said Circuit Judge Johnson did not have sufficient to appear “in a 19th-century Alice-in-Wonderland environment that legal grounds to hold McRoy in contempt. allows pomp, self-importance and deference to the court to eclipse the truth.” After discussing matters with his wife and his clients, 10. unfortunately for McRoy, she has still not been able to locate he made a U-turn and confirmed that he would continue to practise, her phone. and continue to wear dresses.

11. One may be in contempt of court even when one is silent. The Wall 16. Sometimes, being in contempt of court may bring unexpected benefits. Street Journal reported that a North Carolina judge held an attorney in The Independent newspaper of Ireland reported that a homeless contempt in January 2008 for reading Maxim magazine during a court alcoholic was jailed by the Dublin District Court for contempt. The court session. Judge Kevin Eddinger held lawyer Todd Paris in contempt after had grown weary of the disturbance that Anthony Walshe was causing he saw him reading Maxim magazine with “a female topless model” on after an earlier reprimand did not work. Impatient for his case to be the cover, according to the court order. When Judge Eddinger gave heard, Walshe cheekily quipped when his trial date was set: “Thanks Paris a chance to respond he apologised and stated that “in his view judge, I’m off to watch the Ryder Cup.” the magazine was not pornography, was available at local stores and that he did not intend contempt,” the order said. Judge Eddinger fined 17. The courtroom erupted in laughter, but Judge Mangan failed to see Paris $300, gave him a 15-day suspended jail sentence that remains in the humourous side, and said Walshe had “pushed matters too far”. effect for a year and placed him on unsupervised probation, according He held Walshe in contempt of court and sentenced him to seven days to the order. in prison. After Walshe apologised for his Ryder Cup quip, his lawyer explained that he was an alcoholic. 12. It is unclear whether the Singapore edition of the magazine would excite the same response, but we do not recommend that you test this 18. Since Walshe purged the contempt, his sentence was reduced issue in our courts unless you have strong compelling reasons. to spending the weekend in jail. He was hauled off to Mountjoy Prison, where inmates were free to watch the Ryder Cup live on 13. There are many arguments available to resist a charge of contempt cable television. of court, but one of the least successful examples must be that of 19. I trust the above research meets your requirements.

46 | | 47 Side Bar

To Yoof bin Naif, Pupil From Pupil Master Messrs Rob Lye & Kon, Advocates & Solicitors

Dear Pupil

As usual, I’m far too busy to read your note. I don’t have any idea what it contains, but I suppose it’s all accurate. Please format it and file it in court. I will pass it off as my own arguments, as always.

48 |