Judge dismisses SDP's POFMA challenge over '10 million population' article

SINGAPORE: A High Court judge on Tuesday (May 10) dismissed the Singapore Democratic Party's (SDP) challenge against a correction direction issued under the Protection from Online Falsehoods and Manipulation Act (POFMA).

The party was ordered to pay the Attorney-General S$7,000 in legal costs.

The correction order, issued on Jul 4, 2020, during campaigning for the General Election, was directed at a post on SDP's Facebook page titled "10 million population".

Justice Woo Bih Li on Tuesday found that the statement in question was a false statement of fact, rather than a statement of opinion not covered by POFMA, as SDP had argued.

The statement targeted by the POFMA directive was: "Also, the HDB chief executive Cheong Koon Hean said that Singapore's population density would increase from 11,000 people per sq km to 13,700 people per sq km between now and 2030. Given our land area, this means that our population would go up to nearly 10 million by 2030."

This made reference to an Institute of Policy Studies (IPS)-Nathan Lecture delivered in April 2018 by Dr Cheong, who was CEO of the Housing and Development Board (HDB) from 2010 to 2020.

In his ruling, the judge said SDP "must have known that the density in Dr Cheong's statement could not be simply applied over Singapore's total land area".

The correction direction said that Dr Cheong had referred not to "population density" but to "living density", which takes into account only the land available for urban areas. This excludes land used for ports, airports and defence, among others.

The directive also said that the Government has not "proposed, planned nor targeted" for Singapore to increase its population to 10 million.

The Minister for National Development earlier rejected SDP's application to cancel the correction direction in August 2020.

This appeal hearing was previously adjourned pending the Court of Appeal's decision on SDP's three other challenges against POFMA directives.

That decision was delivered in October last year and laid out, for the first time, a five-step framework for a court to determine whether to overturn a POFMA correction direction, which the judge went on to apply in this case.

OPINION OR FACT

SDP, represented by lawyers Suresh Nair, Eugene Thuraisingam and Joel Wong, argued that the subject statement was a statement of opinion as it involved a deductive process.

Even if the subject statement were to be considered a statement of fact, it was not false as it was an accurate report of Dr Cheong's statement, they contended.

The first sentence "states what was said by Dr Cheong", they argued. The second sentence then "derives" the alleged population target by multiplying the figure of 13,700 people per sq km by Singapore's raw land mass.

Mr Nair argued that the first sentence was an accurate report of what Dr Cheong said as the terms "living density" and "population density" were virtually synonymous.

He then argued that the second sentence stated the "methodology" that SDP used to derive its conclusion in the phrase "given our land area", and that this was an interpretation of what Dr Cheong meant.

The Attorney-General disagreed with this, arguing that the subject statement was a statement of fact that, when read in context, attributed the notion of a 10 million population by 2030 to Dr Cheong.

State Counsels Kristy Tan, Jamie Pang and Beulah Li argued that SDP's objective in the Facebook post was to show that the notion of a 10 million population came from HDB and by extension, the Government.

They pointed to the opening line of the Facebook post: "The idea of Singapore increasing its population to 10 million did not originate from the SDP."

They also argued that the subject statement was false as Dr Cheong did not use the term "population density", and was not referring to the density of people inhabiting Singapore based on the country's total area.

Singapore's developable land area is 500 sq km, significantly less than the total land area of 720 sq km, they said.

"Thus, attributing the 10 million figure to HDB's chief executive is plainly false as the population figure based on developable land area would be significantly less than 10 million."

JUDGE'S FINDINGS

Justice Woo noted the provision in POFMA that a statement of fact is one that "a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact".

He said this was the starting point for determining if a statement is one of fact or opinion.

"I am of the view that the second sentence of the subject statement was not an attempt by SDP to give its own opinion about what Dr Cheong's statement would mean," said the judge.

"Rather, the entire subject statement purported to be a report of what Dr Cheong had said in Dr Cheong's statement. Hence, both sentences were statements of fact."

Justice Woo also said it was "telling" that in SDP's arguments, the party "choose to steer away" from a forum letter in which HDB had answered questions about Dr Cheong's statement.

SDP's Facebook post contained a link to a Straits Times forum letter by Mr Cheang Peng Wah published on Apr 20, 2018, in which he raised concerns about the population figures mentioned in the IPS lecture.

HDB responded through a letter dated Apr 24, 2018, by Mr Jeffrey Aw, then director for strategic planning. The letter clarified that the population figures cited were based on living density, which takes into account only land available for urban areas.

"It would be inaccurate to extrapolate the population size from the living density figure," the letter stated.

Justice Woo recounted that when the court asked Mr Nair to address Mr Aw's letter, the lawyer responded that there was no evidence to show SDP was aware of it.

The judge said this was "not a valid argument" as, among other reasons, SDP had previously argued why Mr Aw's letter was unhelpful in its application to cancel the correction direction.

He said the forum letter was the first reason for finding that the subject statement, considered as a whole, was a false statement of fact.

"It showed that the SDP article had deliberately substituted 'living density' in Dr Cheong's statement for 'population density'," said Justice Woo.

"More importantly, that letter showed that the density in Dr Cheong's statement was based on urban areas in Singapore and not Singapore's total land area. Yet the SDP article deliberately applied her figures to the latter."

The judge said the second reason was that if the current density mentioned by Dr Cheong – 11,000 people per sq km – was applied to Singapore's total land area of about 720 sq km, this would yield about 7.92 million people at the time of the IPS lecture.

Ms Tan had referred to this as a "back of the envelope calculation", and argued that Singapore's population at the time was not even 6.9 million.

"Hence, SDP must have known that the density in Dr Cheong's statement could not be simply applied over Singapore's total land area," said the judge, adding that it was significant Mr Nair did not have any response to this argument.

"In the light of the reasons I have given, it is clear that SDP deliberately included the subject statement in the SDP article, knowing that it was false," said Justice Woo.