Criminal defamation trial: Prosecution withholds long statement of accused from Defence as they are not obliged to provide

Defence says long statement crucial to prove accused's innocence and raise questions on the charges

The prosecution has opted to withhold the long statements of TOC chief editor Terry Xu and TOC contributor Daniel De Costa from their defence counsels in their criminal defamation case, arguing that there is no obligation to do so.

Mr De Costa’s counsel M Ravi last Friday filed his second application to have Mr De Costa’s long statement released by the Prosecutors.

Mr Ravi repeated the earlier submissions he made on 3 January this year, where he argued that his client merely echoed the allegations made by Prime Minister Lee Hsien Loong’s siblings Dr Lee Wei Ling and Mr Lee Hsien Yang in their joint statement in July 2017, citing Section 395(2)(b) of the Criminal Procedure Code.

Mr Xu’s counsel Remy Choo Zheng Xi made a similar application with reference to Section 11 and 15 of the Evidence Act.

Section 11 states that facts that are not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact.

It also provides that facts that are not otherwise relevant are relevant, if, by themselves or in connection with other facts, they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Section 15 states that if an act involving an individual is part of a series of similar occurrences — when there is a question on whether it is intentional or carried out with knowledge or intention — it can be construed as relevant.

Mr Choo further referenced Section 14 of the Criminal Procedure Code for the production of the complaint.

Section 14 states that the police officer recording the complaint must, among other information, mark the date and time of receiving the information, the name and address of the informant, and “such other particulars as the nature of the case may require”.

In situations where writing down the above particulars is not practicable, a recording officer must “cause to be recorded” a “fuller statement” from the informant under Section 22 of the Code if the offence to which the information relates is an arrestable offence.

Both the accused had made records of their interview and filed the records in their affidavit.

Mr Choo argued that the long statement from Mr Xu would help to answer the question of whether the accused had been made to answer a claim against him during the course of the investigation.

While the investigating officer claimed that he had made the police report because he thought that there had been an offence of criminal defamation of the Cabinet members and that Cabinet members have been listed as victims of criminal defamation in the charges against the two accused, no questions were raised to the two accused persons in relation to the Cabinet members as far as their records of the interview go.

In response, Deputy Chief Prosecutor Mohamed Faizal Abdul Kadir said that the two counsels are wrong in their interpretation of the law and that there is no obligation by the State Prosecutors to reveal the long statements.

He further argued that since the two accused had made their records as they claimed, there is no need to ask for the long statements.

The prosecution relied on the judgement of the previous District Judge Christopher Tan in submitting that the current District Judge Ng Peng Hong should strike down the application made by the two defence counsels.

Mr Choo argued that the decision by Judge Tan was based on a different stage of the hearing, while Mr Ravi said that Judge Ng should not be bound by the decision of the previous District Judge.

Judge Ng ruled against the two applications, noting that he agrees with the previous judgement by Judge Tan. The latter was removed as the judge presiding over the case and has been appointed as a Registrar of the State Courts.

In striking out the two applications that took the two defence counsels significant time to deliver their points, Judge Ng said that he had heard the submissions of the counsels and agreed with the ruling of the previous District Judge.

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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