High Court dismisses latest bid to refer constitutional question in criminal defamation case; no cost orders made against defence counsel or Prosecution

In the latest saga to the criminal defamation case involving a 2018 article published on The Online Citizen, Justice Aedit Abdullah has delivered his judgment on Tuesday (2nd June) morning, dismissing the third and latest application by Daniel de Costa Augustin, the author of the article, in order to refer a constitutional question to the High Court for its determination.

In the same vein, Justice Abdullah also dismissed the cross-applications from both the Prosecution and De Costa’s lawyer, Mr M Ravi, for cost orders to be made against each other.

In the present application, De Costa, through Mr Ravi, had applied to the High Court under section 395(5) of the Criminal Procedure Code, to refer the following question for the High Court’s determination:

“Whether the prosecution of Daniel de Costa contravenes Article 12(1) of the Constitution of the Republic of Singapore, in light of the non-prosecution of Dr Lee Wei Ling and Mr Lee Hsien Yang, for allegations of a similar, if not more serious nature (that puts them in the position of potential defendants), pertaining to similar subject matter.”

This was the same question as in the second such application filed, save that the earlier application was filed in the State Courts and dismissed by District Judge Christopher Tan on 20th January this year. In the first such application dismissed in November last year, the questions concerns the meaning of “person” under section 499 of the Penal Code, and whether the Cabinet falls within such a meaning having regard to Articles 23 and 24 of the Singapore Constitution.

In a 39-page written judgment, Justice Abdullah held that the High Court was exercising its supervisory jurisdiction over the State Courts in applications under s 395(5) of the CPC, and could therefore consider the application afresh without considering the State Courts’ reasoning in rejecting the earlier application.

Turning to the question itself, Justice Abdullah held that the question was essentially a question of fact, and “does not raise any new legal question concerning the interpretation or effect of a constitutional provision”.

Justice Abdullah also found that there was no prima facie breach of Art 12(1), holding that “the unauthorised use of another person’s e-mail and impersonation of that person’s identity” were differentiating factors in the present case. These were relevant considerations in the exercise of prosecutorial discretion, “assuming that they were considerations”.

As for costs, Justice Abdullah do not find that the circumstances warranted the imposition of cost orders against the Prosecution or Mr Ravi personally, given that the applications were not so hopeless or “launched with recognition that there was no probability of success”.

However, he took note of the Prosecution’s concern of there being attempts to delay the present proceedings, and warned that “the future conduct of the case remains of concern”, such that it might result in cost orders made against Mr Ravi or any other counsel who takes the matter over.

The matter will now proceed to trial.