Both TOC editor-in-chief Terry Xu and TOC contributor Daniel Augustin De Costa submitted on Monday (26 July) that there is no case to answer on the Defence’s part against two charges made against them regarding a letter published on the site in September 2018.

Mr De Costa and Mr Xu were charged on 12 December under Section 499 of the Penal Code for criminal defamation, following investigations in November 2018.

Mr De Costa had allegedly 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 be published on TOC using the pseudonym of “Willy Sum”, a name used by Mr De Costa’s friend Sim Wee Lee who owns the email account.

The letter was published on 4 September 2018 with the headline “The Take Away from Seah Kian Ping’s Facebook Post”, with attribution to Willy Sum.

In the letter, Mr De Costa commented 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 De Costa was also charged under Section 3(1) of the Computer Misuse Act (CMA) for his alleged unauthorised access to the email address used to submit the letter to TOC.

Lawyer M Ravi of K K Cheng LLC, who represents Mr De Costa, in stating that there is no case to answer, argued that the prosecution had failed to fulfil at least one element from both charges under Section 230(1)(j) of the Criminal Procedure Code.

Relying on Section 2(5)(b) of the same Act, Mr Ravi honed in on the issue of whether the accused was given consent to access the relevant service, program, or data by the person who holds the right or authority to do so.

Mr Ravi argued that his client, contrary to a previous case of a similar nature, had obtained consent from Mr Sim.

This is because Mr Sim himself had given Mr De Costa his Yahoo email password.

Mr Ravi noted, however, that the question of consent extends beyond mere access to the account itself, but rather on whether there is permission to access specific kind of data.

He cited an English case, in which it was found that the appellant did not have the authority to use the victim’s email account for the purpose of sending “lurid” emails — even with the assumption that the victim had given their email password to the appellant.

Mr Ravi also referenced a clause concerning member account, password and security in Yahoo’s Terms of Service (ToS), which stated that the account creator is responsible for ensuring that the account’s password remains confidential, as well as for all the activities that take place using the account.

Yahoo absolved itself with a liability clause, stating that it will not be held liable for any loss or damage that may arise from the account owner’s failure to abide by the stipulated terms.

Mr Ravi highlighted that Mr Sim had testified multiple times during cross-examination that he had taken note of the ToS at the time he created the account, notwithstanding his claim of a lack of proficiency in English.

However, Mr Sim added that his primary concern at the time was simply to obtain a Yahoo email account, which was why he agreed to Yahoo’s ToS to be able to proceed with the creation of the account.

Mr Ravi also noted that Mr Sim had testified about being aware that Mr De Costa was sending out emails purportedly without his prior consent using the Yahoo email account.

The earliest occasion in which Mr Sim had reportedly realised that Mr De Costa has been sending out such emails using the account, Mr Ravi said, was some time in late-June 2008 — months before the alleged offences took place in September that year.

ALSO READ: Criminal defamation trial: Prosecution witness arrested, imprisoned for drugs after police turned up to his house to investigate criminal defamation

Despite that, Mr Ravi argued, Mr Sim did not demonstrate any material steps to recover his account, such as changing his password to prevent Mr De Costa from continuing to use the Yahoo account to send more allegedly unauthorised emails.

Mr Sim had testified that he did not change his password despite knowing what Mr De Costa has been using the email account for, as he needed Mr De Costa’s help to write letters to the Housing Development Board and other government bodies.

Mr Sim also said that there was “a level of trust” with Mr De Costa due to their status as friends.

Additionally, Mr Sim had testified that he did not know how to used the Gmail account linked to his Yahoo account to recover the latter’s password.

He claimed that a friend had helped him make changes to the Yahoo account but could not remember who the friend was.

The testimony of Deputy Superintendent of Police (DSP) Jonathan Au Yong, the investigating officer in the case, however, suggested that Mr Sim could have attempted to recover the password through the assistance of a third party or even by himself, Mr Ravi argued.

Mr Sim, however, did not make proactive moves to access his own Yahoo account and to monitor the activities that took place through it, which implies that he had given consent to Mr De Costa to use the account for any purpose, the lawyer added.

It was revealed in the course of the trial that it was DSP Au — not the Infocomm Media Development Authority (IMDA) — who had 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.

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 after Mr Xu removed the letter within hours on 18 September 2018 under the instructions of IMDA in compliance to the Broadcasting Act.

Mr Choo, of Peter Low & Choo LLC, asked in Monday’s hearing if it was the first time that DSP Au had seen a letter from a ministry stating that it had received advice from the Attorney-General’s Chambers (AGC) that “a criminal offence has been disclosed” in Mr De Costa’s letter.

DSP Au affirmed that it was the first time that he has seen such a letter.

However, the police officer disagreed that he was compelled by the advice given by AGC to IMDA to proceed with the investigation on the alleged offence when this was put to him by Mr Choo during cross-examination.

Mr Choo had earlier told DSP Au that there was no need to proceed with criminal defamation investigations — which Mr Choo branded a waste of public resources — as it is widely known that members of the Cabinet such as former Prime Minister Goh Chok Tong and PM Lee himself have pursued civil defamation suits against such individuals — and even entities — if they are defamed.

While DSP Au noted that he is aware of the suits, he disagreed that there was no basis for the investigation, as the police are obliged to investigate alleged offences that are brought to their attention.

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

Which members of the Cabinet?: Criminal defamation charge did not outline exact identity of those harmed, lawyer M Ravi argues for no case to answer

Mr Ravi argued that the criminal defamation charge against his client is “defective”, as Mr De Costa did not single out or identify any individuals who may have been harmed by his alleged defamatory statement.

The charge sheet’s reference of ‘corruption at the highest echelons’ as the alleged offence that underpins the criminal defamation charge against Mr De Costa, the lawyer added, did not include the context in which the quoted statement was originally written.

Mr Ravi cited the Malaysian case of Public Prosecutor v Mohamad bin Sabu, in which the Penang High Court upheld the accused’s acquittal from the criminal defamation charge made against him.

Justice Lim Chong Fong ruled that the charge had failed to state the “precise identity” of the persons who were allegedly harmed by Mr Mohamad’s statement.

Mr Mohamad, an opposition politician, said in a speech in August 2011 that a film on the 1950 Bukit Kepong incident — the siege of the namesake police station by Malayan communists — had depicted the guerilla members as traitors.

The guerilla members, he said, were in fact warriors of independence led by Muhammad Indera, and that the Bukit Kepong police were actually British police.

Mr Mohamad’s criminal defamation charge sheet alleged that the Parti Amanah Negara president had defamed ‘members of the police force who defended themselves during the attack by communists in Bukit Kepong Police Station on 23 February 1950’.

Stating that the charge against Mr Mohamad was “bad in law”, Justice Lim found that the defective element in the charge was not simply a defect but an error that has caused “prejudice and injustice”.

“The appellant was left in doubt as to the offence of which he had been convicted and sentenced. It is a fundamental principle of criminal law in our country that an accused person should know accurately of what offence he has been convicted and sentenced,” the judge reasoned.

Drawing from Justice Lim’s remarks in PP v Mohamad Sabu, Mr Ravi concluded that if the charge made against Mr Mohamad in his criminal defamation case can be held as defective, then there is no reason why the present charge against Mr De Costa should stand, given how it did not disclose any offence or establish any prima facie case for Mr De Costa to answer.

Affirming Mr Ravi’s points, Mr Choo stood at this juncture, saying that the same reasoning is applicable to Mr Xu’s position.

He argued that the words “highest echelons” cannot be read by a reasonable member of the public as being “members of the Cabinet” if one were to read the letter and refer to the words used.

The DPP responded to Mr Ravi’s point of identification, saying that people would have known who the members of cabinets were even if they are not named. To this, Mr Ravi countered by referring back to the Malaysian case which he cited, noting that police members at Bukit Kepong Police Station could surely be counted as well.

After presenting their arguments for no case to answer on Monday, the judge said that he accepted the prosecution’s evidence, which in his view had established a prima facie case for the court to hear. The court continued with the hearing after the two accused elected to give evidence and take the stand.

ALSO READ: Criminal defamation trial: High Court rules prosecution obliged to disclose accused persons’ statements to Defence if such statements could help Defence or weaken Prosecution’s case

“Corruption at the highest echelons” about PM Lee’s purported conduct in Oxley Road dispute: Daniel De Costa

The part about “corruption at the highest echelons”, said Mr De Costa on Monday, concerned Prime Minister Lee Hsien Loong’s purported conduct in the Oxley Road dispute, not members of the Singapore Cabinet per se.

Mr De Costa said this in court when Mr Ravi asked him to elaborate on what he had meant when he wrote the phrase.

At the heart of the 38 Oxley Road dispute is the house owned by the Lee siblings’ late father and Singapore’s founding prime minister Lee Kuan Yew and the elder Lee’s wish to have the house demolished instead of being turned into a museum or government relic.

Mr LHY and Dr LWL are joint executors and trustees of Mr LKY’s estate.

In a joint statement released on 14 June 2017, which was shared on their Facebook pages, PM Lee’s two younger siblings claimed, among multiple other allegations, that PM Lee and his wife Ho Ching had defied Mr LKY’s wish to demolish the house.

They also alleged that PM Lee and Mdm Ho were responsible for instilling and perpetuating the Government’s stance to preserve the house at 38 Oxley Road, including PM Lee’s purported move to demonstrate that Mr LKY had changed his mind on having the house demolished.

Mr De Costa on Monday said PM Lee had “hijacked the organs of state” in pursuit of his “personal goals”.

The absence of an inquiry into the case, he added, indicated a lack of transparency on the part of state institutions, he added.

In addition to the Oxley Road dispute, Mr De Costa also cited the Keppel Offshore & Marine and the Football Association of Singapore scandals — concerning bribery and alleged misuse of funds respectively — to back his use of the “corruption at the highest echelons” phrase in his letter.

Deputy Public Prosecutor Mohamed Faizal, however, asserted during cross-examination on Tuesday’s hearing that two of the examples cited by Mr De Costa were not included in the letter itself.

“These are belated assertions that you are only making now… They were never considerations in your mind when you wrote the letter in question,” the DPP said.

In response, Mr De Costa denied the DPP’s charge against him, saying that these were at the back of his mind.

He pointed out that he did reference the Oxley Road dispute in the letter.

When asked about the alleged offending material he had sent using Mr Sim’s Yahoo email account, Mr De Costa told the prosecution that Mr Sim consented to him sending the said material using the account, adding that Mr Sim would even offer his opinion on the issues he wrote about.

In re-examination, Mr Ravi referred Mr De Costa to his long statement — which was handed to the defence only on the day of the hearing — and pointed out that Mr De Costa had indeed raised the issue of the Oxley Road dispute to the police as the reason behind using “the highest echelons” when fleshing out issues of transparency in governance in his letter.

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.

The trial is set to continue on Monday, with Mr Xu taking the stand.

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