SINGAPORE: Activist Jolovan Wham and Singapore Democratic Party's John Tan will have to wait to find out their sentences after both men were convicted of contempt of court.
Justice Woo Bih Li on Wednesday (Mar 20) reserved judgment on the High Court sentencing against Wham and Tan. During the two-hour hearing, he grilled both the prosecution and defence on their sentencing submissions.
The prosecution called for Wham to be fined S$10,000 to S$15,000 and in default, jailed for two to three weeks. It also wanted Tan to be sentenced to at least 15 days in jail, saying both men demonstrated an "utter lack of regard" and “disrespect of the finding of this court in particular".
They have a "high level of culpability", the prosecution added.
The duo was found guilty of the offence in October last year. In April 2018, Wham published a Facebook post alleging that Malaysia's judges were more independent than Singapore's when it comes to cases with political implications.
The Attorney-General's Chambers (AGC) initiated a contempt of court case against him.
Less than a month later, Tan, a Singapore Democratic Party politician, said on Facebook that the AGC's actions confirmed the truth of Wham's comment.
These were the first convictions for contempt of court by scandalising the judiciary, under the Administration of Justice (Protection) Act 2016, which came into effect on Oct 1 last year.
In supporting his sentencing submissions, Deputy Public Prosecutor Senthilkumaran Sabapathy said that a relevant aggravating factor was that the offending posts were still online, more than five months after the men were found guilty of contempt of court, and more than 10 months after the posts were posted.
He said: "This shows a striking lack of remorse and defiance of the court’s authority."
During the hearing in the High Court, Justice Woo questioned the relevance of the timeline and said that the bottom-line was that the two men have refused to take their posts down.
Mr Senthilkumaran, referring to blogger Alex Au’s contempt of court case for which Au was fined S$8,000 in 2015, said that Wham’s case was more serious than Au’s.
Au’s allegations, which were against Chief Justice Sundaresh Menon and Justice Quentin Loh, were more targeted, while Wham’s was an “indiscriminate attack and wholly unnecessary”, he added.
The judge questioned his argument that Wham was more culpable, given that Au took the trouble to target certain members of the judiciary, and his post "went into paragraphs".
When Mr Senthilkumaran said that Wham’s offence is more serious, Justice Woo said: "I am trying to understand how so."
PROSECUTION, TAN'S LAWYERS ASK FOR JAIL TERM
Justice Woo also took issue with the submission that Tan should have a custodial sentence, which the prosecution pointed out that his defence lawyers agreed with. The two men were represented by lawyers Eugene Thuraisingam, Remy Choo and Priscilla Chia.
Justice Woo said: "This court is not bound to sentence a person to imprisonment just because prosecution and defence think it’s appropriate."
Mr Senthilkumaran also raised Tan’s previous offence in 2008, when he was convicted of contempt of court for turning up at a defamation hearing in a T-shirt with a kangaroo dressed in a judge’s gown.
The prosecution said it pointed to the politician’s higher culpability. Photos of him and others wearing the same T-shirt were also posted online.
While Justice Woo said that the two offences were different, Mr Senthilkumaran argued that the essence of the offences was the same.
“I hear you that he has got an antecedent. I am just wondering whether that necessarily means he needs to be incarcerated for the present offence," Justice Woo said.
When Mr Thuraisingam responded, asking for Wham to be fined S$4,000 to S$6,000 or jailed a week in default, and for Tan to be jailed for three days, Justice Woo grilled him on the need for Tan to be imprisoned.
The reason behind asking for a jail term was that if a politician was fined more than S$2,000, he or she would not be able to stand for election. The threshold for being able to stand for election when it comes to a jail term is one year.
He also asked if Mr Thuraisingam thought that Tan was more culpable than Wham, given the higher sentence submitted for Tan.
“If I am not persuaded that he is more culpable than Wham, we have a situation that one sentence is a fine, and one is a jail sentence,” Justice Woo said.
The judge said it was up to Tan if he wanted to stand for election, but questioned if the court should take it into account when sentencing.
COURT SHOULD ORDER APOLOGY, POSTS TO BE TAKEN DOWN
The prosecution also asked the court to order the men to apologise and take down the posts, but Justice Woo said that an apology should not be forced.
“How meaningful can it be if the court has to order the contemnor to apologise?" he asked. He reiterated his question several times, asserting that a forced apology was not a genuine apology.
Mr Senthilkumaran said that sincerity was not the point, but efficacy was. He argued that the apology should be made on the same medium where the offence was committed, in this case, on Facebook and that a court order would "ensure effective purging" of the contemptuous content.
The judge asked if not purging the content could lead to a second incident of contempt of court, of which the prosecution said it would.
"We are not focusing on the two of them, but the administration of justice and the reputation of the court," Mr Senthikumaran said.
Justice Woo said he was more concerned about the principle. If he were to follow the prosecution's argument, the general approach would be to order an apology, the judge added.
The prosecution also sought S$8,000 in costs from Wham and S$5,000 from Tan.
During the course of the discussion with the judge, Mr Thuraisingam submitted a higher sentence of seven days and said that while Tan will not apologise, as he did not intend to scandalise the court, he will take down the post on Wednesday.
This is not Wham's first brush with the law. Last month, he was fined S$3,200 over a public assembly he organised two years ago without a permit and refusing to sign a police statement. At the time, he indicated he would not pay the fine and will instead serve jail time of 16 days in default.
For contempt of court, Wham and Tan face a maximum fine of S$100,000 and a jail term of up to three years.