Chief Justice (CJ) Sundaresh Menon dismissed the criminal motions filed by TOC chief editor Terry Xu and contributor Daniel Augustin De Costa on Wednesday (3 Feb).
In his brief oral delivery of the basis of the decision, he said that the facts before him do not convince him that the high threshold for the High Court to order a revision of a State Court decision has been met.
The criminal motions were filed separately by Mr Xu and Mr De Costa in the High Court against the Public Prosecutor over the prosecution’s refusal to disclose their police statements pertaining to their criminal defamation case.
Applications for the disclosure of the said statements recorded under Section 22 of the Criminal Procedure Code (CPC) were earlier dismissed by District Judge Christopher Tan and District Judge Ng Peng Hong.
The statements were taken during investigations regarding the case, which stemmed from a letter submitted to TOC by Mr De Costa.
In the letter published on TOC on 4 September 2018, Mr De Costa alleged that there has been “multiple policy and foreign screw-ups, tampering of the Constitution, corruption at the highest echelons and apparent lack of respect from foreign powers” in Singapore “since the demise of founding father Lee Kuan Yew”.
Mr Xu and Mr De Costa were charged on 12 December under Section 499 of the Penal Code for criminal defamation, following investigations in Nov 2018.
When asked about the relevancy of the s.22 statements, Mr Xu’s lawyer Remy Choo Zheng Xi noted that Mr Xu’s statement is likely to strengthen his case, as no questions were asked in relation to whether he intends to defame the cabinet of Singapore, and does not think that the statement is neutral or adverse.
While the CJ pointed out that such matters could be brought up in the course of the appeal, Mr Choo voiced concerns of tailoring in impeachment, which goes to underscore the importance of addressing a procedural error on the get-go.
Addressing the prosecutors, the CJ said that he does think that there is force in the applicants’ argument that Kadar should not be understood in the manner how the District Judges understood and that in principle, the s.22 statement forms part of the universe of unused material.
CJ suggested to the DPPs that this case seems to be a storm in a teacup, as they know what the applicants believe the statements to contain and that the applicants would find nothing surprising from the disclosure of the s.22 statement.
He also asked the prosecutor to consider if the material was relevant and reminded him — in the event that the s.22 is proven to be relevant to the defence — if there is a need for a retrial.
Mr De Costa’s lawyer M Ravi argued that while the DPPs contend that the accused can opt into the Criminal Case Disclosure Conference (CCDC) process, which will allow the accused to access their own s.22 statement, s.159 of the CPC requires the consent of both parties.
Since the DPPs knew well before the commencement of the trial that the accused sought their statements and objected to the release of the statements, why would they agree for the accused to opt into the CCDC?
This, as Mr Ravi puts it, is having the defence “go on a wild goose chase”.
Decision of District Judges to dismiss De Costa’s previous applications failed to follow Court of Appeal’s ruling in Kadar: De Costa’s lawyer
Mr Ravi also submitted that the decision of the two District Judges who dismissed his client’s previous applications for the disclosure of his s.22 statement was in breach of the stare decisis doctrine.
Under stare decisis, a lower court is bound to follow the principles used by a higher court when deciding cases with similar facts.
In this case, Mr Ravi argued, the District Judges’ rulings were made in contravention of the Court of Appeal’s decision in Muhammad bin Kadar v Public Prosecutor — the case that gave rise to what is known as ‘the Kadar obligation’.
The Kadar disclosure obligation, based on the Court of Appeal’s ruling in the namesake murder case, stipulates that the prosecution is legally bound to disclose two kinds of unused material, namely:
- Unused material which is likely to be admissible and might reasonably be regarded as credible and relevant to either the guilt or innocence of the accused; and
- Unused material which is likely to be inadmissible, but may open up a real (not fanciful) chance of pursuing a line of inquiry leading to material that is likely to be admissible, might reasonably be regarded as credible, and may be relevant in proving the guilt or innocence of the accused.
Law and Home Affairs Minister K Shanmugam in January 2012 said in Parliament that the prosecution “must assess its disclosure obligations professionally and in good faith”.
Mr Ravi highlighted District Judge Christopher Tan’s reasoning in dismissing Mr De Costa’s first application, in which the judge stated that the accused’s statement cannot be affirmatively classified as unused “until after the accused has given his testimony” and it has been assessed that the statement is “not going to be used for cross-examination”.
“With respect, once an accused person’s statement was not adduced into evidence as part of the Prosecution’s case — that is, that it was not intended to be introduced as evidence throughout the process prior to the Prosecution closing its case — it would have already fallen into the category of “unused material” as set out in Kadar,” he submitted.
Mr Ravi also argued that the disclosure of unused material in the prosecution’s possession at any point before the trial begins should be carried out before the trial commences, as mandated by the statutory regime under the CPC and/or the principle in Kadar.
This is regardless of whichever court a criminal trial was to be commenced in, unless the prosecution had come into possession of “unused material” only after the trial begins, such as out of further investigations halfway into the trial.
“The exceptions to non-disclosures prior to trial, if there were any to begin with, plainly do not apply to accused person’s statements, which were generally recorded almost immediately after accused persons were called up for interviews or arrested,” Mr Ravi argued.
Citing Deputy Attorney-General Hri Kumar Nair SC’s remarks in his opening address at the Criminal Law Conference 2019, Mr Ravi pointed out that Mr Nair had spoken about the “information asymmetry” between the defence and the prosecution.
Mr Nair, Mr Ravi highlighted, had also acknowledged prosecutors’ Kadar disclosure obligation in his speech.
Permitting the Prosecution to “reserve” certain evidence for their use during cross-examination, even when it is not intended to be relied upon before closing its case, would effectively allow the prosecution to gain a “tactical advantage” over accused persons, Mr Ravi argued.
This “trial by ambush”, he added, would be “antithetical” to what was espoused in the Deputy A-G’s remarks.
Prosecution ought to err on the side of disclosure, according to case law: Xu’s lawyers
Mr Xu’s lawyers, Mr Choo and Priscilla Chia submitted that according to existing case law, the prosecution ought to err on the side of disclosure in the event that it is disputed whether they are bound by the Kadar disclosure obligation, as per Muhammad Nabill bin Mohd Fuad v Public Prosecutor.
Similar to Mr Ravi’s argument for Mr De Costa, they argued that Mr Xu’s statement “constituted evidence that falls within the category of unused material that ought to be disclosed” in line with the principle in Kadar.
They noted that the prosecution had stated on 21 October last year that they could not disclose the statement “at this juncture” as requested.
A day later, Mr Xu’s lawyers stressed in a reply to the prosecution that the statement is relevant to the defamation case and could fall under the ambit of the Evidence Act.
The relevance of the statement, they said, has to do with Mr Xu’s intention with regards to publishing the offending article, which makes up “an essential element” of the defamation charge.
In Mr Xu’s personal recollection of his s.22 statement, he stated that Mr De Costa’s letter was “not different from how letters are published in the ST [The Straits Times] Letter forum”.
Mr De Costa, said Mr Xu, had “simply expressed his belief based on the events he had described in his letter” when asked about why he had published the letter.
When asked at the time his statement was taken if he thought “it is misleading”, Mr Xu said that Mr De Costa’s letter was “clearly stated as a letter submission, with the featured image being a letter and categorised as a letter”.
Mr Xu’s lawyers argued that “the mere fact that the Prosecution has not decided whether it will be relying on” Mr Xu’s s.22 statement “should not exclude the statement from being considered an unused material”.
“Otherwise, there can potentially be a universe of unused material that will only be disclosed at the end of the trial on the basis that the Prosecution needs to continuously evaluate whether it may have to rely on the unused material, depending on developments at trial.
“This will prejudice accused persons, who will be prevented from relying on such materials for the conduct of their Defence,” they submitted.
Mr Xu’s lawyers argued in the alternative that even if the Court finds that the statement does not fall under the Prosecution’s Kadar disclosure obligation, their client’s s.22 statement ought to be disclosed pursuant to Section 6 of the CPC.
Xu’s, De Costa’s applications a way of circumventing the prohibition against interlocutory appeals: DPPs
Deputy Public Prosecutors (DPPs) Senior Counsel Mohamed Faizal, Senthilkumaran Sabapathy and Sheryl Yeo argued that both Mr Xu’s and Mr De Costa’s applications are an abuse of process, saying that the said applications are a way of circumventing the prohibition against interlocutory appeals.
The applications, the DPPs added, breach “the unambiguous statutory regime” in Section 395 of the CPC, which stipulates that only constitutional questions of law may be referred to a higher court at any time during the course of a trial.
“All other interlocutory orders by the trial judge, including determinations of questions of law concerning criminal disclosure, must await the final decision or order of the trial court before being referred to a higher court by way of an appeal,” they elaborated.
“In the premises, there is no legal basis at all for an application for disclosure of material to be brought directly to a higher court mid-trial,” they said, in arguing for why Mr Xu’s and Mr De Costa’s applications are an abuse of process in their view.
Addressing Mr Xu’s and Mr De Costa’s arguments that the prosecution is bound by the Kadar disclosure obligation in the defamation case, the DPPs submitted that even if such an obligation exists with respect to the statements in question, such an obligation would not arise at this stage of the trial before the prosecution has closed its case.
According to the DPPs, the prosecution has also reviewed the statements and have not found anything in the said statements that binds the prosecution under the Kadar disclosure obligation.
Mr Xu and Mr De Costa, said the DPPs, did not furnish any grounds as to why or how they have rebutted the presumption of the prosecution has complied with the Kadar obligation.
The two individuals, said the DPPs, merely supplied “a bare allegation” and did not identify which aspects of the statements fall within the scope of the Kadar obligation.