The Attorney-General alleged that he had scandalised the court by attacking its reputation in his 2010 book Once a Jolly Hangman: Singapore Justice in the Dock.

[1] Fourteen statements of varying lengths from the book were purported to have alleged that the Singapore judiciary had succumbed to political and economic pressures when adjudicating matters concerning the death penalty, is biased against the economically and educationally disadvantaged, and is a tool of the ruling People's Action Party to stifle dissent within the political domain in Singapore.

This test required an evaluation of whether the comments made had "the inherent tendency to interfere with the administration of justice",[18] which had to be proved beyond reasonable doubt.

Allowing the defence of fair comment would expose the courts to any belief published in good faith and not for an ulterior motive, even though it may be unreasonable.

Similarly, the defence of justification would give malicious parties an added opportunity to subject the dignity of the courts to more attacks.

[33] The elements of the defence are as follows:[34] The High Court individually examined the 14 statements impugned by the Attorney-General to determine whether some or all of them, contextually considered, posed a real risk to public confidence in the administration of justice.

It also considered whether the statements were made with rational bases and/or in good faith so as to entitle Shadrake to claim fair criticism.

Justice Loh put it thus:[36][37] Given that the book is or was available publicly, and continues to be circulated, there is certainly more than a remote possibility that, if the matter had been left unchecked, some members of the public might have believed Mr Shadrake's claims, and in so doing would have lost confidence in the administration of justice in Singapore.The Court held that Shadrake could not rely on the defence of fair criticism as the statements were published "without any rational basis, or with reckless disregard as to their truth or falsehood ... [and] do not fall to be protected by the defence of fair criticism".

[41] Justice Loh went on to state that despite numerous references to constitutional authorities in other jurisdictions, the defendant's counsel had not directly addressed the issue of how Article 14 compelled the adoption of the real risk test.

However, he noted that counsel had not submitted that the offence of scandalising contempt itself was unconstitutional, and that cases from other jurisdictions had held that the real risk test, together with the fair criticism defence, operated as a reasonable restriction on free speech.

[42] On 16 November 2010, Shadrake was sentenced to imprisonment for six weeks and fined S$20,000,[37][43] at that time the heaviest punishment handed down in Singapore for scandalising contempt.

Amnesty International decried the sentence as a "sharp blow to freedom of expression" and stated that Singapore had drawn even greater global attention to its lack of respect for free speech.

[44] A statement on the website of the British High Commission in Singapore, issued by the Foreign and Commonwealth Office in London, expressed dismay at Shadrake's sentence.

[49] The Court of Appeal affirmed that the mens rea or mental element for liability was the intentional publication of the allegedly contemptuous statement.

[50] The Court then focused on the actus reus of the offence, and considered the legal principles for identifying the suitable test for liability for scandalising contempt.

[53] Gary Chan has "warmly welcomed" the Court's confirmation that the real risk test applies in Singapore as this signals "a more liberal attitude towards the alleged contemnor in cases of scandalising contempt".

First, in determining whether there was a real risk, the court has to make an objective decision based on the effect of the impugned statement on an ordinary reasonable person.

[55] Gary Chan has commented that if a statement is only made to a small group of people, the confidence of the public at large in the administration of justice may not be shaken.

The Court of Appeal held, however, that a holistic reading of Wain suggests that the tests are not different, given that they both evaluate the impact of statements on the public confidence in the administration of justice within the context of the case at hand.

[51] The Court of Appeal stated that case law was ambiguous as to whether the concept of fair criticism was a separate defence or an issue of liability forming an integral part of the process of analysis.

The Court of Appeal concluded with a caveat that the approach adopted was only provisional in nature, since the characterisation of fair criticism was not fully canvassed before it.

[68] Chan has said that requiring the Prosecution to prove the absence of fair criticism is to be "commended for enhancing the protection of the alleged contemnor’s right of free speech".

These factors include:[69] In addition, the court ought to bear in mind the following key question: does the impugned statement constitute fair criticism, or does it cross the legal line by posing a real risk of undermining public confidence in the administration of justice?

This would overly restrict the scope of fair criticism and render the concept redundant, given that most allegedly contemptuous statements, by their nature, call into question the independence, impartiality and integrity of the courts.

This limitation overburdens the right of free speech, and a person should not be prevented from raising rationally supported criticism simply because he or she does not have access to formal avenues.

[75] It found that there was a real risk that these statements would undermine public confidence in the administration of justice as they suggested that the judiciary was influenced by considerations relating to politics, international trade and business;[76] favoured wealthy and privileged people;[77] and was compliant to instructions issued by the Government.

Shadrake had drawn attention to the fact that one Sergeant Rajkumar from the Central Narcotics Bureau was under investigation for offences under the Prevention of Corruption Act[80] at around the time he was giving evidence in Mourthi's case.

Shadrake then stated that the high echelons of the judiciary knew about Rajkumar's misdeeds but deliberately suppressed knowledge of them until after Mourthi had been executed.

The Court noted the admission by Shadrake's counsel that nearly 6,000 copies had been sold in Singapore and abroad due to heightened curiosity about the book during the trial.

Following the High Court's ruling on liability but before it had sentenced him, Shadrake had also given an interview to the UK newspaper The Guardian, in which he described his book as "devastatingly accurate" and declared that "[t]his story is never going away.