2nd bid to refer TOC defamation case to High Court thrown out

Amir Hussain
Senior Reporter
Daniel Augustin De Costa (wearing a tie) was charged with one count of criminal defamation and another count of unauthorised access to computer material last year. (Yahoo News Singapore file photo)

SINGAPORE — A man accused of defaming members of Cabinet via an article has failed in his second bid to have the matter referred to the High Court on the grounds that his charge is unconstitutional.

At the State Courts on Monday (20 January), District Judge Christopher Tan disagreed with Daniel Augustin De Costa’s contention that there was a question of law relating to the interpretation of the Constitution which merited such a referral.

De Costa, through his lawyer M Ravi, had argued that his prosecution infringes on his right to equality before the law. Article 12 of the Constitution guarantees that all persons are equal before the law and entitled to the equal protection of the law.

At the time of the alleged offence, other publications, such as a joint statement made by Lee Wei Ling and Lee Hsien Yang, “made similar or worse imputations that were directed squarely at the Prime Minister, a member of the Cabinet”, said Ravi, who was referring to the younger sister and younger brother respectively of Prime Minister Lee Hsien Loong.

Saying that the law should be enforced equally, the lawyer had argued that if the Lee siblings are not prosecuted, then De Costa should similarly not be prosecuted.

Ravi said he intends to file a criminal motion, or an appeal, against the judge’s decision at the High Court.

Background of the case

On 4 September 2018, De Costa allegedly submitted an article to socio-political website The Online Citizen (TOC) using the name “Willy Sum”, using an email account which he had purportedly accessed without authorisation. TOC editor Terry Xu Yuanchen then published the article, which has since been taken down.

The Info-communications Media Development Authority (IMDA) made a police report on 5 October 2018 stating that the article had alleged corruption against some persons. Among other things, the article stated that “we have seen multiple policy and foreign screw-ups, tampering of the Constitution, corruption at the highest echelons and apparent lack of respect from foreign powers ever since the demise of founding father Lee Kuan Yew”.

On 13 December 2018, Xu and De Costa were both charged with criminal defamation in relation to the article allegedly written by De Costa and published by Xu. De Costa was also charged with one count of unauthorised access to computer material.

De Costa’s lawyer Ravi unsuccessfully made the first application to refer the case to the High Court in November last year. Ravi had argued, among other things, that the charge was unconstitutional for infringing on Article 9 which deals with personal liberty, and Article 14 which covers freedom of speech, assembly and association.

Lee siblings made similar allegations: lawyer

At the State Courts on Monday, Ravi said, “The evidential burden is on the Attorney-General to justify his prosecutorial decision to prosecute only Mr Xu and Mr De Costa. As the Lee siblings have made similar if not more serious allegations in a similar context, a prima facie breach of a Constitutional right has arisen”.

In his submissions, the lawyer included purportedly defamatory statements made by the Lee siblings about the prime minister misusing his powers and abusing organs of state.

Citing Article 12 of the Constitution, Ravi added, “A literal reading of the provision affirms the positive entitlement of individuals to be treated equally by the law. A negative formulation of the provision is that it is impermissible for the Executive to administer the law in an unequal fashion.”

Application frivolous and vexatious: prosecutor

In response, Deputy Chief Prosecutor Mohamed Faizal said, “Much like the first application, the present application is frivolous and vexatious, and consequently should be dismissed”.

He added, “It is impossible not to conclude that this application is motivated by ulterior motives. De Costa should not be permitted to abuse court processes to delay and frustrate proceedings any further.”

There are many legitimate reasons for the prosecution to differentiate between different offenders involved in the same criminal enterprise, said DCP Faizal. “Instead, De Costa bears the burden of showing that the Attorney-General failed to give unbiased consideration to all relevant factors or took into account irrelevant considerations such that there are no valid grounds for such differentiation,” he added.

A pre-trial conference for Xu and De Costa’s cases will be held next month.

The maximum punishment for criminal defamation is up to two years’ jail and a fine. For unauthorised access to computer material, the maximum penalty is up to two years’ jail and a fine of up to $5,000.

Related stories:

Non-prosecution of Lee siblings makes TOC defamation case unconstitutional: lawyer

Bid to refer TOC defamation case to High Court thrown out

TOC editor Xu and writer De Costa charged with criminal defamation

The Online Citizen editor and another person to be charged with defamation