Xu Yuan Chen v Attorney-General: Judicial Review of Prosecutorial Discretion & Equal Protection

Xu Yuan Chen (alias Terry Xu), the Chief Editor of The Online Citizen (TOC), applied for leave to commence judicial review proceedings against the Attorney-General's (AG) decision to prosecute him for contempt of court. The application was based on the grounds that the AG's decision was unlawful, irrational, and in breach of Article 12(1) of the Constitution, which guarantees equal protection under the law. The High Court dismissed the application, finding that Xu had not shown a prima facie breach of Article 12(1) of the Constitution and that the AG's decision was neither illegal nor irrational. The court awarded costs of $5,000 to the AG.

1. Case Overview

1.1 Court

General Division of the High Court

1.2 Outcome

Application Dismissed

1.3 Case Type

Judicial Review

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Application for judicial review of Attorney-General's decision to prosecute Xu Yuan Chen for contempt of court was dismissed. The court found no breach of equal protection.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Attorney-GeneralRespondentGovernment AgencyCosts AwardedWon
Sarah Siaw of Attorney-General’s Chambers
Kristy Tan of Attorney-General’s Chambers
Amanda Sum of Attorney-General’s Chambers
Xu Yuan Chen (alias Terry Xu)ApplicantIndividualApplication DismissedLost

3. Judges

Judge NameTitleDelivered Judgment
Hoo Sheau PengJudge of the High CourtYes

4. Counsels

Counsel NameOrganization
Sarah SiawAttorney-General’s Chambers
Kristy TanAttorney-General’s Chambers
Amanda SumAttorney-General’s Chambers
Lim TeanCarson Law Chambers

4. Facts

  1. Xu Yuan Chen, Chief Editor of TOC, published a letter critical of Singapore's Chief Justice.
  2. The Attorney-General commenced committal proceedings against Xu for contempt of court.
  3. Xu applied for judicial review of the Attorney-General's decision, alleging unequal treatment.
  4. The letter was originally published on a blog by Ms. O'Connor, an Australian citizen.
  5. TOC has a larger audience and reach than Ms. O'Connor's blog.
  6. The Attorney-General argued that Xu's publication gave the allegations greater currency.
  7. Ms. O'Connor resides overseas, posing difficulties for investigation and prosecution.

5. Formal Citations

  1. Re Xu Yuan Chen (alias Terry Xu), Originating Summons No 917 of 2021, [2021] SGHC 294

6. Timeline

DateEvent
Letter and Article published on BOTT and TOC website respectively
Attorney-General’s Chambers sent a letter of demand to the applicant
AG commenced OS 694 for leave to apply for the order of committal against the applicant
SUM 3816 was filed
Applicant lodged the present application
OS 917 dismissed
Grounds of Decision issued

7. Legal Issues

  1. Breach of Equal Protection under Article 12(1) of the Constitution
    • Outcome: The court found that the applicant had not shown a prima facie breach of Article 12(1) of the Constitution.
    • Category: Constitutional
  2. Propriety of Attorney-General's Exercise of Prosecutorial Discretion
    • Outcome: The court found no illegality or irrationality in the Attorney-General's decision to prosecute the applicant.
    • Category: Administrative

8. Remedies Sought

  1. Prohibiting Order
  2. Declarations

9. Cause of Actions

  • Judicial Review

10. Practice Areas

  • Constitutional Litigation
  • Judicial Review

11. Industries

  • Media

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Syed Suhail bin Syed Zin v Attorney-GeneralCourt of AppealYes[2021] 1 SLR 809SingaporeReiterated the three conditions to obtain leave to commence judicial review proceedings.
Ramalingam Ravinthran v Attorney-GeneralUnknownYes[2012] 2 SLR 49SingaporeEstablished that the court should presume that the AG’s prosecutorial decisions are constitutional or lawful until they are shown to be otherwise.
Daniel De Costa Augustin v Public ProsecutorHigh CourtYes[2020] 5 SLR 609SingaporeSummarized the principles concerning the interpretation and effect of Art 12(1) in relation to prosecutorial discretion as laid out by the Court of Appeal in Ramalingam.
Tan Seet Eng v Attorney-General and another matterUnknownYes[2016] 1 SLR 779SingaporeIn considering the legality of a decision, the court examines whether a decision-maker has exercised his discretion in good faith according to the statutory purpose for which the power was granted, and whether he has taken into account irrelevant considerations or failed to take account of relevant considerations.

13. Applicable Rules

Rule Name
Order 53, Rule 1 of the Rules of Court (2014 Rev Ed)

14. Applicable Statutes

Statute NameJurisdiction
Articles 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)Singapore
Article 35(8) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)Singapore
Administration of Justice (Protection) Act (Act 19 of 2016)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Judicial Review
  • Prosecutorial Discretion
  • Equal Protection
  • Contempt of Court
  • Attorney-General
  • The Online Citizen
  • Originating Summons
  • Prima Facie
  • Illegality
  • Irrationality

15.2 Keywords

  • Judicial Review
  • Prosecutorial Discretion
  • Equal Protection
  • Contempt of Court
  • Singapore
  • Attorney-General
  • Constitution
  • TOC

17. Areas of Law

Area NameRelevance Score
Judicial Review90
Prosecutorial Discretion85
Constitutional Law80
Administrative Law75
Equal protection of the law70
Civil Procedure40
Criminal Revision30

16. Subjects

  • Constitutional Law
  • Administrative Law
  • Judicial Review
  • Contempt of Court