Apex court dismisses SDP politician's appeal to replace fine with jail so he can run for election

Singapore Democratic Party vice-chairman John Tan (above) and civil activist Jolovan Wham had each been fined $5,000 in April last year for scandalising the court in separate Facebook posts. PHOTO: ST FILE

SINGAPORE - The Court of Appeal has rejected arguments by opposition politician John Tan Liang Joo, who had sought a short jail term for contempt of court instead of a $5,000 fine, so that he could still run in the upcoming General Election (GE).

Potential disqualification from standing for elections is not a relevant factor in sentencing, ruled a five-judge panel, in its first judgment on new contempt of court laws.

A person is disqualified from standing for election as a Member of Parliament if he is sentenced to at least a year's jail or a fine of at least $2,000.

Chief Justice Sundaresh Menon, delivering the court's decision, said an offender should not be allowed to choose a particular sentence based on his political aspirations.

Tan, the vice-chairman of the Singapore Democratic Party (SDP), and civil activist Jolovan Wham had each been fined $5,000 in April last year for scandalising the court in separate Facebook posts.

They were the first to be prosecuted under the Administration of Justice (Protection) Act, which took effect in October 2017, and appealed against conviction and sentence.

In a written judgment on Monday (March 16), the court dismissed their appeals and ordered Wham to take down his post. The court rejected as irrelevant his assertion that he subjectively did not intend to scandalise the court.

"The statement made in Wham's post is among the most serious aspersions that one can cast upon a judiciary. Wham plainly intended to make that statement and to have it taken seriously," said the court.

Tan's post has since been removed.

The court also dismissed the Attorney-General's appeal for the pair to publish apologies.

Tan had argued that he was willing to accept a "harsher" sentence of seven days' jail, rather than pay the fine, to avoid being disqualified from contesting in the elections.

However , the apex court said Tan's argument was flawed.

"It would bring the judiciary and the administration of justice into disrepute if we were to impose sentences with an eye towards the political process.

"After all, a court that chooses to impose an inappropriate sentence in order to avoid disqualifying a candidate from standing for election as a Member of Parliament could just as easily do the same thing to achieve the opposite end.

"In truth, both outcomes are equally abhorrent and impermissible," said the court.

The court added that it strove to impose a punishment that fits the wrongdoing.

"Ironically, it seems that Tan is inviting us to do the very thing that he and Wham have improperly accused the judiciary of, namely, to decide his appeal... otherwise than in accordance with its merits."

On April 27, 2018, Wham made a Facebook post stating that Singapore's courts are not as independent as Malaysia's on cases with political implications.

The Attorney-General then initiated contempt of court action against him.

On May 6 that year, Tan, wrote on Facebook that the AGs' actions confirmed the truth of Wham's comment.

Both were convicted of scandalising contempt by the High Court and each sentenced to $5,000 fine, with one week's jail in default.

In its judgment, the Court of Appeal also provided guidance on the legal test for scandalising contempt.

Under the Act, it must be proved that an alleged contemptuous statement poses a "risk" that public confidence in the administration of justice would be undermined.

The court ruled that the test is whether a reasonable person reading the statement would conclude that it posed a risk of undermining public confidence in the administration of justice.

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