Apex court rejects TOC editor's bid to stop A-G's contempt proceedings against him

The Court of Appeal yesterday dismissed a bid by The Online Citizen (TOC) chief editor Terry Xu to stop the Attorney-General from continuing with contempt proceedings against him.

The Attorney-General had started contempt of court proceedings against Xu last year after the now-defunct sociopolitical website reposted an open letter by Australian writer Julie O'Connor questioning Singapore's justice system.

Xu sought to challenge this decision, arguing that prosecuting only him was a violation of his constitutional right to equal treatment under the law.

But the three-judge apex court, in its written judgment, said Xu has failed to show that the Attorney-General's actions had resulted in him being treated differently from another equally situated person.

On Jan 27 last year, Xu published an article comprising Ms O'Connor's letter - which she had posted on her personal blog - on the TOC website and shared the article on the TOC Facebook page.

After Xu refused to delete the article and Facebook post, the Attorney-General's Chambers filed an application on Aug 11 last year seeking to punish him for contempt. On Sept 8, Xu filed an application seeking judicial review. This was dismissed on Nov 25 by the High Court.

Xu then appealed.

At the heart of the case is how Article 12(1) of the Constitution, which states that "all persons are equal before the law", is applied in the context of the exercise of prosecutorial discretion.

The apex court noted that the concept of equality under Article 12(1) means that all persons in like situations will be treated alike.

The judgment, delivered by Justice Steven Chong, said it was clear that Xu's treatment cannot be meaningfully compared with that of Ms O'Connor as there were differentiating factors between them.

The fact that Ms O'Connor lives overseas, making it difficult for the Singapore authorities to investigate and prosecute her, differentiated her from Xu, who is within Singapore's jurisdiction.

Another factor was that the publication of the article on TOC's platforms was likely to cause a greater degree of harm than Ms O'Connor's publication of the letter on her blog, given TOC's substantial audience and reach.

In assessing what would be in the public interest, the Attorney-General was entitled to take into account the degree of difficulty in investigating and prosecuting Ms O'Connor, as well as whether taking action against Xu would be sufficient, said the court.

The Attorney-General also was entitled to assess the degree of harm and to conclude that it was in the public interest to prosecute Xu, but not Ms O'Connor.