Singapore High Court replaces jail terms for criminal defamation by Terry Xu and TOC contributor with fines

SINGAPORE — Justice Aedit Abdullah of the Singapore High Court delivered a judgment on Thursday  (4 May), upholding the convictions of the editor of online news website, The Online Citizen Asia (TOC) and a contributor to the publication, Daniel De Costa, but replacing their jail terms with fines. The two appellants, Xu and De Costa, originally sentenced to three weeks' imprisonment for their respective criminal defamation charges, successfully appealed to replace their jail terms with fines. The charges stemmed from a letter from De Costa that was published on TOC in September 2018, which allegedly defamed members of the Cabinet. The two were later charged in December of that year for criminal defamation under Section 499 of the Penal Code.

Defamation of Cabinet

In his judgment, Justice Abdullah addressed the interpretation of the phrase "present PAP leadership" and its relationship to "corruption at the highest echelons", as used in the letter. The judge concluded that the reasonable inference is that the "present PAP leadership" refers to the members of the Cabinet, who are responsible for the perceived failures mentioned in the letter. This inference is supported by the understanding that key members of the PAP would be associated with the members of the Cabinet. Regarding the phrase "corruption at the highest echelons," the judge disagreed with the Prosecution's argument that it would be interpreted as an allegation of corruption against the members of the Cabinet. Instead, he accepted the argument put forth by Xu, stating that the more natural interpretation is that it implies a failure of action or omission by the Cabinet in addressing corruption at the highest levels. The judge emphasized the crucial distinction between holding the Cabinet responsible for the rise of corruption and accusing the Cabinet members of being corrupt themselves. He found that there was more than a reasonable doubt that the objective meaning of the text was that the members of the Cabinet were corrupt. The judge further examined the applicable law in relation to the appellants' knowledge of the harm to the reputation of the members of the Cabinet. Under Section 499, the mens rea requirement is that the accused published the imputation intending to harm or knowing that such imputation will harm the reputation of the person involved. Explanation 4 of Section 499 elaborates on how an imputation may be considered to harm a person's reputation. In applying the law to the facts of the case, the judge focused on whether the appellants knew that the imputation of "corruption at the highest echelons" would harm the reputation of the members of the Cabinet in a manner specified in Explanation 4 of Section 499. Justice Abdullah acknowledged that the appellants vehemently denied any intention to harm the reputation of the members of the Cabinet. They argued that their aim was to criticize and express their views on the performance of the government rather than defaming individual members of the Cabinet. In analyzing the evidence, the judge referred to the content and tone of the letter, noting that it was strongly critical of the government and contained disparaging remarks about the "present PAP leadership" and its alleged failures. Justice Abdullah emphasized that the appellants' awareness of the potential harm to the reputation of the members of the Cabinet could be inferred from the strong language used in the letter and the imputation of corruption at the highest echelons. He highlighted that the imputation, as explained by Xu, carried a negative connotation about the Cabinet's ability to prevent corruption. Considering the context and the ordinary meaning of the words used, the judge concluded that the appellants, by publishing the imputation, either intended to harm the reputation of the members of the Cabinet or knew that such imputation would harm their reputation.

Derbyshire principle

Justice Abdullah then addressed the argument raised by Xu regarding the Prosecution's position on whether it was the Cabinet as an entity or individual members of the Cabinet who were defamed. Xu argued that the Prosecution vacillated on this issue due to concerns about contravening the principle established in Derbyshire County Council v Times Newspapers Ltd, which states that a government body cannot sue for defamation. However, Justice Abdullah clarified that this argument did not affect the analysis under Section 499 of the Penal Code. The judge explained that Section 11 of the Penal Code and Explanation 2 to Section 499 allow for the allegedly defamed "person" to include an association, collection, or body of persons. Therefore, the distinction sought by Xu between the Cabinet as an entity and the members of the Cabinet was deemed irrelevant. What matters is that the term "members of the Cabinet" refers to a specific collection or body of persons, which falls within the acceptable limits of Section 499 of the Penal Code. Regarding the principle established in Derbyshire County Council v Times Newspapers Ltd, Justice Abdullah clarified that it pertains to civil defamation cases where a government body sues for damages. In the present case, however, criminal proceedings were instituted by the Attorney-General, not the allegedly defamed persons, under Section 499 of the Penal Code. Therefore, the principle in Derbyshire County Council v Times Newspapers Ltd was deemed irrelevant to the present criminal defamation case.

Jail term reduced to fines while conviction still holds

Justice Abdullah set Xu's fine at S$8,000 (in default of two weeks' imprisonment), while De Costa was fined S$10,000 (in default of three weeks' imprisonment). While the original judge found the defamatory remark to be grave, Justice Abdullah ruled that the imputation of the remarks – by implying they were responsible for "corruption at the highest echelons" due to their incompetence – was less serious as it only attacked the Cabinet members' competence rather than their integrity. Justice Abdullah acknowledged the wide reach of the defamatory remark, given the news platform's extensive readership and reputation, which contributed to the seriousness of the offence. However, he also considered Xu's swift compliance with the Infocomm Media Development Authority's (IMDA) instructions to remove the published letter and cooperation with the authorities as a mitigating factor in determining the appropriate fines. The defendants' appeals against their convictions for criminal defamation were dismissed, as well as De Costa's appeal against the sentence for the Computer Misuse Act (CMA) charge. De Costa's three-month imprisonment sentence for the CMA charge was maintained, as Justice Abdullah found it to be appropriate considering the severity of the offending conduct and lack of mitigating factors. In response to the judgment delivered by Justice Abdullah, De Costa expressed his continued scrutiny of the decision to TOC, emphasizing the importance of safeguarding public interest and fair criticism within the realm of law. While the intent of the court was to bring the matter to a close, De Costa believes it is crucial to examine the judgment closely as a matter of principle. De Costa also expressed his concern regarding how the court reinterpreted the narrative and the sequence of events leading to the upholding of his CMA conviction. He questioned the repeated assertions made by the prosecution that he had access to Mr. Sim's other social media accounts, which, according to him, were never proven and were not the focus of the investigation. De Costa will start to serve his sentence in June after his lawyer, Mr Chung Ting Fai, successfully sought a deferment from the court. Xu served a three-week jail term last year after the District Court issued the sentence over the convictions. His representing lawyer, Remy Choo Zhengxi, will consult him to work out the consequences of the sentencing decision.