Lawyer M Ravi of Carson Law Chambers has argued for the High Court to make a costs order against the Attorney-General as a form of “protection” for defence counsels such as himself.
Mr Ravi made the argument as a means to end to the A-G’s alleged abuse of the court process by repeatedly applying for cost orders against him despite having such applications previously dismissed by the High Court.
In an application heard in the court on Thu (2 Apr), Mr Ravi highlighted that “unlike Defence Counsels who have to fork out monies from their own pockets when faced with such personal cost orders”, Public Prosecutors (PP) are spared from such liability, as the “consolidated revenue of the people” will fund costs orders of such a nature.
Mr Ravi is the Defence Counsel for Daniel De Costa, who was charged in court over an article published on The Online Citizen (TOC) in Sep 2018.
In making his argument, the lawyer cited Section 357 of the Criminal Procedure Code (CPC), which states that no personal costs order can be made against PPs, and Section 358(2) of the CPC, which states that PPs shall not be personally held liable for any costs orders made against them.
Consequently, Mr Ravi urged the court to “recognise this inequality of the application of the law” that shields State Counsels against the liability of costs orders while the same is not afforded to defence lawyers.
Such inequality, argued the defence lawyer, “leads to serious violation of rights of Defence counsels who face the punitive repercussions of personal cost orders in the practice of their profession”.
Such personal costs orders, stressed Mr Ravi, may lead to “potential disciplinary proceedings”, which the Attorney-General has the power to institute after filing a complaint to the Law Society, the regulatory professional body for lawyers in Singapore.
The court must thus, said Mr M Ravi, provide “protection to defence counsels” to enable them to defend “their clients without fear”.
Mr Ravi’s aforementioned arguments were part of his response to the Public Prosecutor’s application to seek a personal costs order against him. He also pointed out that he had two other cost orders applications made against him were dismissed by the High Court, arguing that such applications are filed with a collateral motive to strike fear in him as a human rights lawyer.
He urged the Court to take notice that a regular pre-constructed narrative of a personal level against him has emerged as a result of the State lawyers arguments.
This narrative – claimed Mr Ravi – is one that is laced with ad hominem arguments couched in legal language which does not raise points of law.
The State and the Public Prosecutor, alleged Mr Ravi, are using these cost orders and the ad hominem attacks as a distraction to shield themselves from speaking on the serious points of law raised in this case. Instead they are engaging in pre-meditated rhetorical devices to strike fear, said Mr Ravi.
“As a human rights lawyer and a Defence Counsel, my focus is on the points of law, I will not bow down to this fear and be distracted but will uphold the dignity of the profession and the rule of law in line with Latimer guidelines (on independence of the Bar) and the Legal Profession Act by practicing my law with fearless advocacy,” he said.
He stressed that personal cost orders against lawyers are exceptional applications which are to be sparingly used.
Mr Ravi submitted that this latest third application for a personal costs order made against him in recent weeks by the A-G in the sum of S$5000 was made even before the hearing has commenced.
This application, he said was frivolous, vexatious and an abuse of the process of the court by the A-G, and therefore ought to dismissed with costs against the A-G or the State.
Case is novel due to the classification of facts by the Attorney-General
Last Dec, Mr Ravi filed an application on behalf of Mr De Costa to have his client’s case stated in the High Court for the purpose of raising the question as to whether the prosecution of Mr De Costa contravenes the equality provision of Article 12 of the Constitution.
On 20 Jan this year, District Judge Christopher Tan had dismissed the application as he ruled that the question at hand had been dealt with in prior cases and there was no novel question of law in the case that warranted a referral to the High Court.
On Thu, the defence lawyer reiterated his previous stance in the High Court that the constitutional question at hand is both a question of law and a novel issue.
Mr Ravi, in his application, pointed out that other publications, such as the Joint Statement of Lee Wei Ling and Lee Hsien Yang – siblings of Prime Minister Lee Hsien Loong – made similar or worse imputations that were directed squarely at the Prime Minister, a member of the Cabinet.
The application highlights a segment of the Joint Statement by Dr Lee Wei Ling and Mr Lee Hsien Yang where they wrote, “Lee Hsien Loong misused his powers as Prime Minister, and that he hijacked the organs of state to pursue his own personal desires” against De Costa’s offending words, “corruption at the highest echelons”.
Furthermore, Mr Ravi pointed to the court that Mr De Costa and Mr Xu had both — in their statement to the police — referred to the allegations made by LWL and LHY as the basis of the offending words.
Mr Ravi argued that commencing legal proceedings only against Mr De Costa and TOC’s chief editor Terry Xu and not “a person who made a similar statement” serves as a violation of Article 12 of the Singapore Constitution, which provides for equal protection before the law.
The above issue serves as “a high constitutional question” and a novel issue, as a comment “made by one person becomes a family dispute, but the identical comment made by another person becomes a criminal act”.
Citing one of the applications he made as an example, he said he had no choice but to file an application, as the prosecution refused to provide the long statement of his client and that of Mr Xu.
He had earlier pointed out in this application that his request would have been allowed if the matter was brought in before the District Courts.
“I question the process that is being unequal, what’s wrong with that?” said Mr Ravi.
The Attorney-General’s representatives early last month submitted to the court that seeking a personal costs order against Mr Ravi in the immediate case is just, as the latter had “facilitated the filing of a frivolous and vexatious application” premised upon “a disingenuous question of law of purported constitutional interpretation or effect”.
“An order of costs reinforces the clear warning by this Court that such unmeritorious applications will be visited with costs,” DPPs Mohamed Faizal SC, Ho Lian-Yi and Sheryl Yeo argued, adding that a personal order of costs will “serve as a timely reminder of the advocate’s duty to court and his client”.
Citing legal precedent in Abdul Kahar bin Othman v PP, the A-G’s representatives argued that Mr Ravi had–similar to the solicitor in Abdul Kahar–persisted with the application, despite being told by the High Court in an earlier application that the questions raised were not of law or those of novel issues–rather, they were questions of fact.
In Abdul Kahar, the Court of Appeal held that the court has inherent power to order defence lawyers to pay costs directly to Public Prosecutors for filing “unmeritorious” motions.
The A-G’s representatives also submitted that an “experienced advocate” such as Mr Ravi would have known that the said application “is completely devoid of merit”.
Consequently, they argued, by filing such an application–in addition to others that were dismissed–Mr Ravi had “facilitated vexatious litigation designed to unnecessarily prolong the matter, subjecting his client to false hope, unnecessary costs and more fundamentally, abused the processes of the court”.
“These are neither in his client’s interests nor in the interests of the administration of justice,” said the A-G’s representatives.
Mr Faizal in his oral submissions argued that the State did not prosecute the offending article simply for the mention of the Oxley Road dispute, but for baseless allegations of corruption made in the article.
Mr Ravi, in response, pointed out the judge to a table of allegations made by the Lee siblings back in 2017 against the one sentence which the AGC found to be an offending statement.
He pointed out the Lee siblings had made allegations against the State that had been even admitted by PM Lee himself in Parliament.
Mr Ravi went on to question how these allegations can be constituted as simply a family dispute, while the offending statement, in the immediate case, is deemed as criminal defamation.
Furthermore, their status as the siblings of the Prime Minister would have lent more weight and belief to the allegation compared to those of his client and Mr Xu, he added.
Background of the case
Mr De Costa was charged on 13 Dec 2018 under Section 500 of the Penal Code (Cap 224, Rev. Ed. 2008) for criminal defamation, the following of which is the full charge:
‘… that you on 4th September 2018, at about 7:24pm, at an Internet café located in Chinatown, Singapore had defamed members of the Cabinet of Singapore by making an imputation concerning members of the Cabinet of Singapore by words intended to be read, to wit, by sending an email titled ‘PAP MP apologises to SP’ from [email protected] to [email protected] which you had written and which stated that there was ‘corruption at the highest echelons’ intending that the contents of the said email would be published on the website www.theonlinecitizen.com, knowing that such imputation would harm the reputation of members of the Cabinet of Singapore […]”
Published on 4 Sep 2018, the article, submitted by Mr De Costa under the pseudonym Willy Sum, alleged 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”.
The offending article was taken down under the orders of Infocomms and Media Development Authority (IMDA) on 18 Sep 2018. IMDA then reported the article to the Singapore Police Force the following month on 8 Oct 2018.
Under Section 500 of the Penal Code, those found guilty of criminal defamation may be subject to a maximum sentence of two years’ imprisonment or a fine or both.
Justice Aedit Abdullah, who presided over the hearing on Thu, reserved his decision and said a written judgement will be made for the case within two months.