Police statement on criminal defamation charges in 2018 misrepresented facts of the case

The Infocomm Media Development Authority (IMDA) has never filed any police report with regards to an article currently at the heart of a criminal defamation trial against TOC chief editor Terry Xu and TOC contributor Daniel De Costa.

This is contrary to what the Singapore Police Force had claimed in a statement it issued in December 2018 statement on the criminal charges against Mr Xu and Mr De Costa regarding the article — a letter Mr De Costa submitted to TOC — which was published on 4 September 2018.

The 2018 statement by the Police wrote:

“On 5 Oct 2018, the Info-communications and Media Development Authority (IMDA) lodged a Police report pertaining to an article titled “The Take Away from Seah Kian Ping’s Facebook Post”, written by one “Willy Sum” and published on the website www.theonlinecitizen.com (“The Online Citizen”). The article had alleged corruption against some persons. The Police, upon receipt of the report from IMDA, consulted the Attorney-General’s Chambers and were given sanction to investigate. The Police also applied to the Courts for and were granted a warrant to search the houses of Xu as well as “Willy Sum”’s houses.”

It was revealed in the course of the trial that it was the Investigating Officer (IO) of the case — not IMDA — who filed a police report on his own accord on 8 October 2018 after the Director of Criminal Investigation Department (CID) had passed him a letter of complaint from IMDA.

When shown the copy of the police statement that claimed that IMDA had filed a police report, the IO in question, Deputy Superintendent of Police (DSP) Jonathan Au Yong Kok Kong, told the court on Friday (30 October) that while he had furnished details about the case to the Public Affairs Department, he had only seen the statement at that very moment.

In reality, the letter dated 5 October is not a police report but a letter to CID Director Deputy Commissioner Florence Chua to ask the Police to follow up on a breach of the Internet Code of Conduct by TOC due to the publication of the 4 September letter.

It was also pointed out to the IO by Mr Xu’s lawyer Remy Choo Zheng Xi that no further action was taken by IMDA.

When Mr Choo tried to ask DSP Au Yong if that would mean the publication of the letter was not serious enough to warrant action by IMDA, the Prosecution objected to the line of questioning and the District Judge ruled in favour of the Prosecution.

Under further cross-examination by Mr Choo, DSP Au Yong revealed that he made the report after reading the letter and believing that an offence has been committed.

When asked if it is normal for a police officer to file a police report, DSP Au Yong said it is not unconventional or improper for a police officer to file a report himself as an administrative procedure on receiving information relating to a possible crime.

Mr Choo then asked if it is normal for the police report to not include the particulars of the complaint or possible offence, to which DSP Au Yong said it was not abnormal.

The Police Complaint filed by DSP Au Yong on the 8 October only stated that there had been a complaint by IMDA on 5 October without any other details or mention of anyone being defamed.

The IO, who is a SPF scholarship holder and graduate of political science studies, also testified that he believed that “the corruption at the highest echelons” mentioned in the 4 September letter was referring to higher political holders of the country, which is the Singapore cabinet.

When Mr Choo asked if the “highest echelons” could have referred to the Central Executive Committee of the People’s Action Party instead of the cabinet as the paragraph containing the offending words started off with “The present PAP leadership…”, DSP Au Yong replied he did not think so because of the mention of topics such as policies and foreign affairs in the paragraph.

Following this, he agreed that the words have to be read in context when Mr Choo referred to his answer and asked.

Mr De Costa’s counsel and human rights lawyer M Ravi had earlier attempted to ask questions from DSP Au Yong on his opinion about the corruption allegations made by Prime Minister Lee Hsien Loong’s two siblings.

However, Mr Ravi was prevented from doing so, following the Prosecution’s objection that the questions were irrelevant.

Mr Ravi tried to argue that DSP’s Au Yong’s opinion on the corruption allegations made by the PM Lee’s two siblings is important.

Reiterating his client’s defence, Mr Ravi stressed that such is because nothing was done to the two siblings for their allegations and he was merely stating what was said by the two siblings.

The District Judge agreed with the Prosecution and ruled against Mr Ravi’s question.

The hearing will continue with a pre-trial conference scheduled on 19 November.

Background on criminal defamation case

Mr Xu and Mr De Costa were investigated on 20 November 2018 under Section 499 of the Penal Code, which states that “whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person”.

Both were subsequently charged on 12 December under the same Penal Code provision at State Courts the following day under Section 500 of the Penal Code for criminal defamation.

Mr De Costa was alleged to have sent an email titled “PAP MP apologises to SDP” on 4 September 2018 from [email protected], with the intention of having the contents of that email to be published on TOC using the pseudonym of “Willy Sum”.

Mr De Costa was additionally charged for committing an offence under the Computer Misuse Act of Singapore.

The offending article was taken down under the orders of IMDA on 18 Sep 2018.

On 20 November 2018, the police seized electronic devices from Mr De Costa’s and Mr Xu’s respective residences under court orders.

Mr Xu was subjected to an eight-hour interview with the police on the day itself, while Mr De Costa was interviewed at a later date.

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.

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