The Court of Appeal yesterday dismissed an appeal by socio-political blogger and gay rights activist Alex Au against a High Court decision which found him guilty of contempt of court by scandalising the judiciary.
While the 62-year-old did not appeal against the sentence, the court noted that the $8,000 fine, which he has paid, was "wholly appropriate".
Judge of Appeal Andrew Phang said Au's article posed a real risk of undermining public confidence in the administration of justice. "It was carefully crafted so as to take the form of insinuations that were just as effective as, if not more effective than, overt or express statements," said Justice Phang.
The case stems from an article published by Au on his Yawning Bread site in October 2013, titled "377 wheels come off Supreme Court's best-laid plans".
In it, he had implied partiality on the part of Chief Justice Sundaresh Menon in the scheduling of two separate challenges against Section 377A of the Penal Code, which criminalises sex between men.
The first challenge was launched by Mr Tan Eng Hong in 2010 after he was caught with a man in a toilet. The other, by gay couple Gary Lim and Kenneth Chee, was filed three months after Mr Tan was allowed to proceed in 2012.
Au wrote of how the couple's case was heard first - and reached the Court of Appeal earlier - even though Mr Tan's challenge preceded theirs. He put this down to "strange calendaring" to allow the Chief Justice to sit on the three-judge panel that would hear the challenge against S377A. Au wrote that the Chief Justice could not do this in Mr Tan's case due to a conflict of interest as he was the Attorney-General when Mr Tan's criminal case was before the courts.
In his judgment yesterday, Justice Phang noted that if Au had merely written that the Chief Justice wanted to hear the gay couple's appeal, he would not have been in contempt.
But Au's article stated that Chief Justice Menon had deliberately delayed the release of High Court Judge Quentin Loh's judgment in Mr Tan's case so that the couple's case would be heard first.
The title of the article and the language used insinuated something "sinister in the alleged deliberate scheduling" of the cases, said Justice Phang. It cannot be said to be fair criticism as it had no rational basis, he added, pointing out that Au had made vague references to "the common view" and cited unidentified sources.
Justice Phang also rejected Au's claim that he had simply summarised an article in The Straits Times on the case, albeit using "a different phrasing". "His 'different phrasing' ended up communicating a wholly different point."
This article was first published on December 2, 2015.
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