Magistrates' Court of Singapore

Public Prosecutor v Daniel De Costa Augustin and another
[2022] SGMC 22

Criminal Law – Offences – Penal Code – Computer Misuse Act – Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9078/2022/01 and MA 9073/2022/01.]

29 April 2022

District Judge Ng Peng Hong:

Introduction

1 Both the accused persons, namely, Daniel De Costa Augustin (“De Costa”) and Xu Yuanchen (“Xu”), are appealing against their respective conviction and sentence. They were tried jointly.

2 I allowed both the charges against De Costa to be tried jointly and to be tried together with Xu as I was satisfied that no prejudice would be caused to the accused persons. In respect of the joinder of charges against De Costa, it is trite that the Prosecution has the sole discretion to determine the particular order of calling their witnesses in support of the respective charges against De Costa. Accordingly, I rejected the application of counsel for the prosecution witnesses for the criminal defamation charge to be called first and for that charge to be tried first. As allured to above, I also overruled counsel’s objection to the joinder of charges.

3 De Costa was convicted on 2 charges. He was sentenced to a total sentence of 3 months 3 weeks’ imprisonment. Xu, other the other hand, was convicted on one charge and was sentenced to 3 weeks’ imprisonment.

The Charges

4 De Costa was convicted on the following charges:

Charge no.	Details
MAC-912135-2018	are charged that you, on 4 September 2018, at about 7.24pm, at an Internet café located in Chinatown, Singapore, had defamed members of the Cabinet of Singapore by making an imputation concerning members of the Cabinet of Singapore by words intended to be read, to wit, by sending an email titled “PAP MP apologises to SDP” from XXX@yahoo.com.sg to theonlinecitizen@gmail.com which you had written and which stated that there was “corruption at the highest echelons”, intending that the contents of the said email would be published on the website www.theonlinecitizen.com, knowing that such imputation would harm the reputation of members of the Cabinet of Singapore, and you have thereby committed an offence punishable under s 500 of the Penal Code (Cap 224, 2008 Rev Ed).
MAC-912136-2018	are charged that you, on 4 September 2018, at about 7.24 pm, at an Internet café located in Chinatown, Singapore, did knowingly cause a computer at the said Internet café to perform a function for the purpose of securing access without authority to an email account hosted on Yahoo’s email server, namely, XXX@yahoo.com.sg, belonging to one Sim Wee Lee, to wit, by logging into the said Yahoo email account in order to send an email titled “PAP MP apologises to SDP” from the said Yahoo email account to theonlinecitizen@gmail.com, without the consent of the said Sim Wee Lee, and you have thereby committed an offence punishable under s 3(1) of the Computer Misuse Act (Cap 50A, 2007 Rev Ed).

5 The charge against Xu was as follows:

Charge no.

Details

MCN-902523-2018

are charged that you, on or about 4 September 2018, in Singapore, had defamed members of the Cabinet of Singapore by publishing an imputation concerning members of the Cabinet of Singapore by words intended to be read, to wit, by approving the publication on the website www.theonlinecitizen.com of a letter from ‘Willy Sum’ titled “The Take Away From Seah Kian Ping’s Facebook Post” which stated that there was “corruption at the highest echelons”, knowing that such imputation would harm the reputation of members of the Cabinet of Singapore, and you have thereby committed an offence punishable under s 500 of the Penal Code (Cap 224, 2008 Rev Ed).

6 I will now give the reasons for my decision. The brief grounds of my decision for the conviction can be found in the transcripts dated 12 November 2021 at pages 1 to 4.

Statement of Agreed Facts (“ASOF”)

7 The parties have tendered an ASOF which is reproduced below.

Agreed Statement of Facts

The Prosecution and the Defence hereby agree that: I. ACCUSED PERSONS 1 The first accused person is Daniel De Costa Augustin, a 37-year-old (Date of Birth: 15 May 1983) Singaporean male and holder of NRIC No. XXX (“De Costa”). 2 The second accused person is Xu Yuanchen, a 37-year-old (Date of Birth: 18 September 1982) Singaporean male and holder of NRIC No. XXX(“Xu”). At the material time, Xu was the director of The Online Citizen Pte Ltd (“TOC Pte Ltd”), and the sole-administrator and chief editor of the website www.theonlinecitizen.com (“the TOC Website”). II. FACTS 3 On 4 September 2018, at about 7.24pm, at an Internet café located in Chinatown, De Costa sent an email which he had written titled “PAP MP apologises to SDP” (“the Email”) from the email account XXX@yahoo.com.sg to theonlinecitizen@gmail.com, intending that the contents of the said email would be published on the TOC Website. 4 For the purposes of these proceedings, De Costa has also filed affidavits dated 9 January 2020 (“De Costa’s first affidavit”) and 28 January 2020 (De Costa’s second affidavit”) and affirms their contents (including all accompanying exhibits) to the best of his knowledge, information and belief. 5 On the same day, Xu approved the publication of the Email on the TOC Website in the form of a letter from ‘Willy Sum’ titled “The Take Away From Seah Kian Ping’s Facebook Post” at http://www.theonlinecitizen.com/2018/09/the-take-away-from-seah-kian-pings-facebook-post/ (“the Material”). 6 For the purposes of these proceedings, Xu has filed an affidavit dated 9 January 2020 (“Xu’s affidavit”) and he confirms that he affirms its contents (including all accompanying exhibits) to the best of his knowledge, information and belief. 5. On 18 September 2018, the Info-communications Media Development Authority (“IMDA”) issued a direction pursuant to s 16(1) of the Broadcasting Act (Cap 28, 2012 Rev Ed) to Xu, as the director of TOC Pte Ltd, to remove the Material from the TOC Website. Xu complied with the said direction. The above facts are not disputed and are agreed upon between the Prosecution and the Defence pursuant to s 267(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

The Computer Misuse Act (“CMA”) charge

The undisputed facts

8 In respect of the CMA charge against De Costa, it was not disputed that on 4 September 2018, at an internet café located in Chinatown, De Costa did send out an email titled “PAP MP apologises to SDP” (the “ Article”)[note: 1] from the email account XXX@yahoo.com.sg (“the Yahoo Account”) to an email account onlinecitizen@gmail.com, intending that the Article be published on the website www.theonlinecitizen.com (“the TOC website”).

9 The Yahoo Account was registered by one Sim Wee Lee (“Sim”) who testified on behalf of the Prosecution.

The relevant statutory provisions of the CMA

10 The relevant provision of Section 3(1) of the CMA states:

Subject to subsection (2), any person who knowingly causes a computer to perform any function for the purpose of securing access without authority to any program or data held in any computer shall be guilty of an offence…

11 Section 2(5) of the CMA defines “without authority” as follows:

For the purposes of this Act, access of any kind by any person to any program or data held in a computer is unauthorised or done without authority if —

(a) he is not himself entitled to control access of the kind in question to the program or data; and

(b) he does not have consent to access by him of the kind in question to the

program or data from any person who is so entitled.

The key issue for the CMA Charge

12 It was not disputed that the Yahoo Account was registered in the name of Sim and De Costa did log into a computer to access the Yahoo Account to send out the Article. It was also clear that Sim changed the password to the Yahoo Account on 21 December 2018 with the help of the police, in particular, PW5 DSP Au Yong Kok Kong Jonathan (“DSP Au Yong”).

13 The main issue for determination was whether De Costa’s access to the Yahoo Account for the purpose of sending out the Article was without authority. In this respect, I found the High Court’s case of Lim Siong Khee v PP [2001] 1 SLR(R) 631 (“Lim Siong Khee”) to be highly instructive. In Lim Siong Khee, the offender was also facing a charge under Section 3(1) of the CMA. The High Court considered Section 2(2) and Section 2(5) of the CMA in interpreting the phrase “without authority” appearing in Section 3(1) of the CMA and held at [19] that consent to access a program or data had to come from the person who was entitled to access the data in question and the access to an account was unauthorised if the person did not have the consent of the kind in question to the program or data. In that case, the High Court held that the offender who had previously been given the password by his ex-girlfriend to access her email, “had no authority whatsoever to access that account to send off lurid e-mails or to check on her personal movements and affairs” (at [19]).

Analysis of the evidence relating to the CMA charge

14 Bearing in mind the principle in Lim Siong Khee and having heard the evidence and considered the parties’ submissions, I found that De Costa had logged into Sim’s Yahoo Account without Sim’s authority in that Sim did not give his consent for De Costa to send out the Article referred to in the charge to theonlinecitizen@gmail.com (“the TOC Gmail Account”) for publication on TOC website.

15 As highlighted at [12] and [14] above, it was without doubt that De Costa had knowingly accessed Sim’s Yahoo Account for the purpose of sending out the Article.

16 De Costa claimed that Sim had given him the password to the Yahoo Account. This was not denied by Sim. Would this amount to consent to allow De Costa to send out the Article? It would still be without authority if De Costa did not have the consent of the kind in question to the program or data. See Lim Siong Khee at [19]. Hence, the issue would be whether De Costa had Sim’s consent to send out the Article.

17 De Costa claimed that Sim had given him access to the Yahoo Account for all purposes and this was consistent with his police statement. He also alleged that Sim did not take steps to recover his account if the Article was sent without his permission or to inform Yahoo as required by the Yahoo Terms of Service. See exhibit D4 at clause 5. Sim also did not order him to stop using the Yahoo Account. This was despite the fact that Sim knew De Costa had sent some emails without Sim’s knowledge[note: 2]. De Costa also alleged that he had told Sim that he would be using the Yahoo Account to write articles.

18 De Costa also claimed that sometime in 2014 or 2015, Sim decided to give up the Yahoo Account to him.

19 Sim did not deny that he had given to De Costa the password to the Yahoo Account. At the material time Sim was facing bankruptcy, had problems with the HDB and traffic summons. He had allowed De Costa access to his Yahoo Account to send out emails on his behalf regarding these personal matters relating to his bankruptcy, HDB and traffic summons issues.

20 Sim specifically denied giving De Costa the permission to send the Article using his Yahoo Account. He also did not think of transferring his Yahoo Account to anyone. He testified that he had not changed the password as he had forgotten that his Yahoo Account was linked to his Gmail for the recovery of the password. He knew that he can use Gmail to change the Yahoo password when he was arrested in 2018 and the police assisted him to use his Gmail to recover the Yahoo Account.

21 For the reasons given below, I preferred the evidence of Sim over De Costa’s.

Credibility of Sim

22 I found Sim to be a credible witness. His evidence was consistent. He gave a reasonable explanation as to why he trusted De Costa with the password to the Yahoo Account.

23 I noted that Sim came to know De Costal sometime in 2005/2006. He was grateful to De Costa for helping him with his personal problems stated above and they became friends. Their relationship was not so good in 2018. The last time Sim used this Yahoo Account was sometime in 2015 to 2016. Thereafter, he was only able to access his Yahoo Account after the Police had helped him to recover his password in December 2018.

24 Sim’s evidence was that the password was given to De Costa as he needed his help to send emails to the bankruptcy department sometime in 2006-2008. Sim was not highly educated. He can write simple English but had difficulty in constructing a proper sentence structure. This was evidenced by his emails written by him to his ex-wife (See exhibit P12 and exhibit P13). He was also not proficient with the use of computer. Hence, he sought De Costa’s help to write the emails on his behalf to the relevant departments regarding his bankruptcy, HDB and traffic matters. He was able to substantiate the emails written on his behalf by De Costa when he was giving evidence in court. For example, pages 109-110 of the Prosecution’s Trial Bundle of Documents (the “trial bundle”), email dated 9 June 2012 and page 105 of the trial bundle, email dated 28 October 2015. Sim was also able to identify emails written by De Costa without Sim’s permission. For example, the following pages of the trial bundle at page 106, Yahoo email dated 28 March 2015, pages 103-104, Yahoo email dated 18 Jan 2016 – these were not written by Sim and were written without his consent.

25 To facilitate De Costa in writing on his behalf the emails in respect of the said personal matters highlighted above, Sim therefore provided him with the password to the Yahoo Account so that De Costa can access the Yahoo Account even when he was outside Sim’s place. Sim trusted De Costa with his password for him to write the emails. Normally if De Costa had sent the email on his behalf, from outside Sim’s place, Sim would check with him via phone. He would ask him whether he had helped him to send his emails, if so, De Costa would inform him so.

26 Besides, the Yahoo Account, Sim also had a Gmail account and a Facebook account, namely, XXX@gmail (“the Gmail Account”) and WillysimFB (“the Facebook Account”) respectively. Sim also gave his password to De Costa to these 2 accounts as he needed him to send emails regarding his bankruptcy, HDB matters and summons. But De Costa also used Sim’s Gmail Account and Facebook Account to send emails without his permission. Sim realized that De costa had sent some emails without his permission, but he did not pursue the matter as he needed his help. He also did not change the password to the Yahoo Account as he needed his help that time. He added that he did not change the password because they were friends and he trusted him. It was also to give him the convenience to send emails when De Costa was outside. These emails were about Sim’s bankruptcy, traffic matters and HDB matters. Sim specifically gave him permission to send such emails. In my view, these were reasonable explanations and there was no reason for me to reject it.

27 Having heard and examined Sim’s evidence, I found Sim was consistent in his evidence that he had given consent to De Costa to his Yahoo Account specifically for his help in writing emails on his behalf regarding his bankruptcy, HDB matters and traffic summons. He specifically told De Costa not to send messages or post anything to criticize the government officers[note: 3]. As noted above, he had also given a reasonable explanation as to why he did not change his password.

28 Sim also disagreed that because De Costa was not paid for helping him therefore Sim allowed him to continue using his Yahoo Account freely to show his gratitude.

29 Besides consistency in his evidence, Sim was also very candid and truthful during his testimony. When questioned about his past, he openly admitted without hesitation that he has been convicted for cheating. He also acknowledged that he had problem with the loan sharks. He was not aware that his problem with the loan shark was published on the Onlinecitizen (See exhibit D1) until the police informed him. It was published without his permission.

30 When shown exhibit D4, Sim candidly admitted that he had noticed the contractual terms for opening the Yahoo Account. Given his educational level and his command of the English language, l accepted his explanation that he did not understand it. Moreover, his main objective was just to have the account for emails.

31 I also accepted Sim’s evidence that it did not occur to him that he could reset the password to his Yahoo Account using his linked Gmail Account. These were my reasons. Firstly, I noted Sim’s low level of computer literacy. Next, DSP Au Yong testified that Sim was unable to access the Yahoo Account. DSP Au Yong had to ask him to try clicking on the “forget password” link; and it was only after they did so and an option turned up for a new password be sent to the Gmail Account that Sim realized that he could access the Yahoo Account through the Gmail Account.[note: 4] PW6 ASP Violet Toh also observed that Sim faced some difficulties when he was asked to reset his Facebook password.

32 I found that Sim trusted and was dependent on De Costa for his help in relation to his personal matters which explained why Sim did not take steps to stop De Costa from accessing Sim’s online accounts including not taking step to change his password when he found out that De Costa had accessed his account without his permission. But it was clear that Sim did not allow De Costa to send out all sorts of emails including the Article on his behalf. I found the access granted to the Yahoo Account was for the purpose of dealing with his personal matters relating to his bankruptcy, HDB matters and traffic summons. It was not for the purpose of sending out the Article.

33 I was also of the view that Sim’s inadequacy in computer literacy and Sim’s dependence on De Costa for help in his personal matters, explained why De Costa could easily exploit Sim for his own agenda, including sending out the Article to the TOC Gmail Account without his prior permission.

34 I found Sim had no motive to fabricate his evidence against De Costa. The Defence also did not suggest to Sim any plausible motivation for him to falsely incriminate De Costa. In fact, Sim had forgiven De Costa for causing him to be investigated and convicted for drug possession. Sim was found to be in possession of drug without authorization during the Police investigation into the publication of the Article. In Feb 2019, Sim was jailed for 8 months’ imprisonment for that offence. He continued to express his gratitude to De Costa for helping him in respect of his personal matters. I also rejected the baseless suggestion to Sim that he had been threatened while in prison to fix the Online Citizen.[note: 5] In fact, Sim flatly rejected such suggestion.[note: 6]

35 To conclude, I found Sim to be a truthful and credible witness who gave consistent and textured evidence, and did not seek to embellish his account. He had no motive to fabricate the evidence against De Costa. I found his evidence to be unusually convincing. Accordingly, I accepted and believed in his testimony given in court.

Evaluation of the Evidence of De Costa relating to CMA charge

36 I rejected the evidence of De Costa that Sim had never objected to his use of the account despite knowing that he was using the Yahoo Account to write political articles.[note: 7] On the contrary, I found Sim was very angry that many emails criticizing the government’s officers were sent without his knowledge and were against his wishes[note: 8].

37 I found De Costa to be an unreliable witness and his evidence to be inconsistent internally and externally. His evidence was inconsistent with the documentary evidence and Sim’s testimony.

38 Firstly, De Costa alleged that he had set up the Yahoo Account together with Sim at a library. This was contrary to Sim’s evidence that he had set up this account before knowing De Costa.[note: 9] Sim’s evidence on this issue was not challenged when he was on the stand.

39 De Costa claimed that the Gmail Account was to be used for appeals while the Yahoo Account was for articles. This was inconsistent with the documentary evidence which showed that the Yahoo Account was also used for appeals, e.g., to send an appeal to the Public Service Division on the repossession of Sim’s HDB flat.[note: 10] “When this contradiction was pointed out to him in cross-examination, De Costa vacillated and claimed that the Yahoo Account was also for “urgent appeals” when he needed to send out emails on Sim’s behalf out of Sim’s presence.”[note: 11]

40 De Costa’s account that Sim was sufficiently fluent in English to read and explain books such as the “The Hatchet Man of Singapore” and “Da Vinci Code” was also plainly untrue in view of the educational level of Sim and his standard of English as evidenced in exhibit P12 and exhibit P13. Moreover, the allegations that Sim read such books, political memoirs and watched the CNN and Fox news were also never put to Sim. In my view, if Sim can read such books and follow Cable News Network and Fox News, it was illogical that Sim still required De Costa’s assistance in crafting emails on his behalf regarding his personal matters. Clearly, De Costa was embellishing his evidence in his defence.

41 When confronted with P13 by the Prosecution that Sim’s standard of English was poor, De Costa replied he did not know. Clearly he was evasive and not forthright. He was also evasive when asked whether it was the Yahoo Account or Gmail Account that he helped Sim to set up at the library. Initially he said it was the Yahoo Account but later he said he was not sure whether it was Yahoo or Gmail Account.

42 De Costal was also untruthful when he denied he had Sim’s password to his Facebook Account. Sim had testified that he had given the password to his Facebook Account to De Costa. He also testified that some messages sent from this account to Eddie Ng and Lilian Ruth Isaac, were praising De Costa. There was no reason for Sim to send messages to them as Sim did not know Eddie and hardly know Lilian Isaac. Sim had also told De Costal not to send messages on racial issues from this account. In light of these circumstances, I had no doubt that De Costa had Sim’s password to the Facebook Account. This was also not challenged when Sim was on the stand. I also agreed with the Prosecution that De Costa had access to the Facebook Account was substantiated by the information listed on the “Other” category of the Facebook profile page, which included “The Eurasian Association”, “The Jerusalem Post” and “Rabbi Angela Buchdahl”, all of which were associated to De Costa by virtue of him being a Jewish Eurasian, but none of which possessed any conceivable or meaningful association with Sim.[note: 12]

43 The unreliability of De Costa as a witness was also evident when he belatedly alleged that he had no access to the Gmail Account. But when Sim was on the stand, he did not challenge Sim’s evidence that he had given De Costa the password to the Gmail Account which De Costa used to send emails without his permission.[note: 13]

44 In my view, it was also illogical to claim that Sim had given up the Yahoo Account because Sim thought it may affect his criminal trial and considered it to be anti-establishment. This alleged reason for giving up the account by Sim was also not put to Sim. Accordingly, I rejected it and disbelieved De Costa’s claim that he had taken over the Yahoo Account before Sim went to prison in 2016. I found Sim had never relinquished the Yahoo Account to De Costa as corroborated by his emails sent to his ex-wife on 29 November 2010 and 30 November 2010 (See exhibit P12 and exhibit P13 respectively).

45 I also rejected De Costa’s claim that Sim did not want the Yahoo Account due to a typographical error in its profile name in that the word “Sum” in the profile name “Wee lee Sum” had been entered in error. This was because De Costa had not put this point to Sim and he had also told Sim that the profile name can be changed. If it could be changed, there was no reason why Sim should give up the Yahoo Account. Sim can just change the profile name and continue suing his Yahoo Account. Hence, I rejected this claim made by De Costa.

46 De Costa alleged that after taking over the Yahoo Account, he changed the profile name to “Willie Tan” as stated in his police statement exhibit P14 A10. However, as of 4 September 2018, the profile name remained as “Wee Lee Sum”.[note: 14] This allegation was also not put to Sim. De Costa’s allegation was clearly untrue and I rejected it.

47 I agreed with the Prosecution that “the fact that De Costa continued to sign off on emails as “WL Sum” after October 2016 and as “Willy Sum” on 4 September 2018, despite claiming that the Yahoo Account belonged to him, reinforces Sim’s evidence that he had never handed over the Yahoo Account to De Costa.”[note: 15] This was consistent with Sim’s evidence that “Willy” was a name he identified with[note: 16].

48 De Costa also claimed that Sim allowed him to use the Yahoo Account because Sim was worried about him. I found this to be illogical and not sensible as De Costa can easily create his own anonymous account.

49 Considering the circumstances, I agreed with the Prosecution that De Costa had deliberately used the Yahoo Account to hide behind Sim’s identity to further his personal agenda including making offensive comments on political office holders.[note: 17]

50 During the cross-examination, De Costa was asked why he took over Sim’s account to write articles and not using his own account. He replied that it was for his own safety and never explored using another account instead of Sim’s account. This showed he was clearly exploiting the trust Sim reposed on him for his own interest. It also showed he lacked credibility and responsibility. I found De Costa was using Sim’s account to misrepresent Sim. A person of such character and moral make-up, in my view, would not be a creditable witness and could not be relied on.

51 Another instance which showed De Costa’s lack of credibility was when he was questioned as to whether Sim had any motive to lie against him. He said Sim had but he did not want to speculate on his motive. This indicated that he was prepared to make unsubstantiated allegation.

52 For the reasons above, I found De Costa to be untruthful and a witness not worthy of any credit. In my view, his defence was contrived and untrue. I, therefore, did not believe in his evidence given in his defence.

Conclusion on the CMA Charge

53 In the circumstances, I had no hesitation in rejecting De Costa’s defence on the CMA charge. I found him to be exploitative, evasive and an unreliable witness. On the other hand, I found Sim to be a credible and honest witness who was consistent in all material particulars of his evidence. Moreover, I had no doubt at all that his evidence was unusually convincing. Accordingly, I accepted Sim’s evidence and having considered all the circumstances, I was satisfied that the Prosecution had proved beyond a reasonable doubt against De Costa on the CMA charge. Hence, I found De Costa guilty and convicted him.

Criminal Defamation Charge (“CDC”)

54 It was not in dispute that at the material time, Xu was the director of The Online Citizen Pte Ltd as well as the sole-administrator and chief editor of the TOC website. On the 4 September 2018, Xu approved the Article written by De Costa for publication on TOC website after making some brief editorial changes. Clearly the Article was intended to be read by those who visited the TOC website. The said Article can be found in the trial bundle at page 7.

55 The material parts of the Article that were published (“the Paragraph”) and formed the main subject matter of the criminal defamation charge read as follow:

“The present PAP leadership severely lacks innovation, vision and the drive to take us into the next lap. We have seen multiple policy and foreign screw-ups, tampering of the Constitution, corruption at the highest echelons and apparent lack of respect from foreign powers ever since the demise of founding father Lee Kuan Yew. The dishonourable son was also publicly denounced by his whole family, with none but the PAP MPs on his side as highlighted by Mr Low Thia Khiang! The other side is already saying that we have no history, origins, culture and even a sound legal system to begin with.” [emphasis added]

The Prosecution’s Case on the CDC

56 The case for the Prosecution was “that both De Costa and Xu had defamed the members of the Cabinet of Singapore by making and publishing an imputation that there was “corruption at the highest echelons” in the Article, knowing that such imputation would harm their reputation.[note: 18]

De Costa’s Defence on the CDC

57 Counsel for De Costa submitted that the prosecution of the accused violated Article 12(1) of the Constitution. It was contended that by not prosecuting the Lee siblings, the Attorney General (“AG”) had discriminated against the accused and had failed to exercise his discretion in accordance with the Constitution.

58 Next, counsel argued that the CDC lacked material particulars as the charge merely stated “members of the Cabinet” without specifying the identity of the persons harmed. Hence, it was submitted that the CDC was defective and disclosed no offence.

59 De Costa also alleged that only a “person” had a reputation which was protected by Section 499 of the Penal Code. It was submitted that “cabinet”, as an organ of the government, did not have a reputation to protect.

60 It was also submitted that the words “corruption at the highest echelons” did not refer to the “members of the cabinet”. De Costa claimed that he was referring to the corporate scandals such as Keppel Corporation where bribes were paid and received. He also maintained that the words “highest echelons” referred to elite members or “the cream of the crop of society”. He denied saying members of the Cabinet in general were corrupt.

61 De Costa also relied on the defence provided by the Second Exception to Section 499 of the Penal Code.

Xu’s Defence

62 It was not disputed that Xu had published the Article with brief editorial changes.

63 Counsel for Xu summarized succinctly Xu’s defence as follows:

“(a) On a plain reading of the phrase “corruption of the highest echelon” (the “Disputed Phrase”), and reading the Disputed Phrase in the fullness of the context of the Letter, the Disputed Phrase does not refer to the individual members of the Cabinet of Singapore;

(b) At the time of the publication of the Letter, Xu did not understand that the Disputed Phrase to be referring to the individual Members of the Cabinet of Singapore. Xu had understood that the subject of the Disputed Phrase to be the dispute with regard to 38 Oxley Road. As such, Xu lacked the requisite mens rea for the offence as he could not have known that the Disputed Phrase contained such imputation that would harm the reputation of individual members of the Cabinet of Singapore when it did not even cross his mind that the said members were the subject of the Disputed Phrase; and

(c) The offence of criminal defamation is also unconstitutional and is an impermissible derogation of the right to freedom of speech guaranteed under Article 14 of the Constitution of the Republic of Singapore (1985 Rev. Ed., 1999 Reprint) (the “Constitution”)”[note: 19].

64 Xu also claimed that he did not know what the phrase “corruption at the highest echelons” (the “Disputed Phrase”) referred to when read on its own. Xu also felt that the phrase “corruption at the highest echelons” was justified as there was a reference to the Oxley Road dispute in the Article.

Decision on CDC

65 With respect to the constitutional issues and the related question of prosecutorial discretion raised by the defence, I was of the view that these were without any merits. I have given the reasons for my holding previously and I will reproduce the same here for ease of reference.

“In this respect, I refer to the High Court’s decision in Daniel De Costa Augustin v PP [2020] 5 SLR 629 at [83] which held that De Costa “has not proven a prima facie breach of Article 12(1) to displace the presumption of constitutionality in respect of the PP’s decision.” This ruling was made in the course of the present proceedings pursuant to an application made by De Costa under Section 395(5) of the Criminal Procedure Code (“ CPC ”). In my view, it is an abuse of the court process to invite this court to rule on the same constitutionality issue as to whether there was a prima facie breach of Article 12 (1) of the Constitution by the PP in discharging his prosecutorial decision when the High Court has already made a ruling. In any event, De Costa has not provided actual evidence of bias by the Public Prosecutor/Attorney-General (‘ AG ”) or that there was the application of irrelevant consideration in the exercise of its prosecutorial decision.

With due respect, I disagree that sections 499 and 500 Penal Code (“defamation provisions”) were in breach of Art 14(1) of the Constitution and were unconstitutional. The Court of Appeal in Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR (R) 791 at [56] held that under Art 14(2) of the Constitution “Parliament is empowered to make laws to impose on the rights of free speech restriction designed to provide against defamation”. I agree with the Prosecution that “law” as defined in Art 2 of the Constitution clearly includes pre-independence laws such as the Penal Code.

On the issue as to whether the proportionality analysis should be used to review the constitutionality of the said defamation provisions, it is clear that in this respect, our Courts have consistently rejected the notion of proportionality as part of Singapore law. I also note that the Court of Appeal in the recent decision of The Online Citizen Pte Ltd v AG and another appeal [2021]SGCA 96 rejected the argument for the requirement of proportionality to be applied in considering the constitutionality of the Protection from Online Falsehoods and Manipulation Act (“POFMA”). In the circumstances, I reject the proportionality analysis advanced by the defence counsel to review the constitutionality of the defamation provisions.”^{[note: 20]}

66 Next I considered the Disputed Phrase in the Article - “corruption at the highest echelons” which was published at the TOC website. In my judgment, it was clear that the said phrase “corruption at the highest echelons” when read in its context was defamatory of members of the Cabinet of Singapore.

67 In determining the meaning of the said phrase “corruption at the highest echelons”, I applied the test of the ordinary reasonable person set out in Microsoft Corp v SM Summit Holdings Ltd [1999] 3 SLR 465 at [53]. And what constituted criminal defamation was defined in Section 499 of the Penal Code.

68 Bearing in mind [67] above and having considered the circumstances of the case, I was of the view that the imputation was clearly defamatory and was made by the accused persons with the knowledge that it would harm the reputation of members of the Cabinet of Singapore. I shall now explain the reasons for my view.

Imputation concerned members of the Cabinet

69 As there was no dispute that the imputation was published by the accused persons, I will proceed to deal with the defence’s denial that the phrase “corruption at the highest echelons” had any reference to members of the Cabinet of Singapore and the contention that it was not shown that the imputation concerned some particular person or persons whose identity can be established.

70 Xu contended that in the present case, the Disputed Phrase did not refer to the highest echelons of an identifiable class. It was submitted that in its plain reading, it was a mere general reference and not to individual members of the Cabinet of Singapore. He made reference to the letter (exhibit P3) written by IMDA dated 18 September 2018 to show that IMDA also did not identify the Cabinet as the subject of the Article. It was also submitted that it can refer to the Central Executive Committee of the PAP. Xu testified that he understood the Disputed Phrase as a reference to the Oxley Road saga and which justified the use of the Disputed Phrase.[note: 21]

71 De Costa ‘s contention on this issue can be found at [60] above.

72 It was alleged that there were different interpretations to whom the Disputed Phrase concerned. Accordingly, it was submitted that there was no certainty of identification but doubt as to the identity of the person targeted by the Disputed Phrase.

73 With respect, I disagreed with the contentions of the Defence. Looking at the Paragraph in its context, it was very clear that the imputation of there being “corruption at the highest echelons” concerned the members of the Cabinet of Singapore.

74 Firstly, as highlighted by the Prosecution[note: 22], the first sentence in the Paragraph “t(T)he present PAP leadership severely lacks innovation, vision and the drive to take us into the next lap” was the thesis statement or premise of the Paragraph. It was followed by illustrations to support the first sentence. The illustrations included references to “policy and foreign screw-ups” and “tampering of the Constitution” which were matters within the purview of the “present PAP leadership”. The Disputed Phrase was also an illustration of the thesis statement. And I agreed with the Prosecution that clearly it was an imputation concerning the “present PAP leadership” which an ordinary reasonable Singaporean would understand it to refer to the leaders of the prevailing People’s Action Party government, namely the members of the Cabinet of Singapore who were responsible for all policies and the day to day administration of affairs of the State. This view was also supported by the previous article published on the TOC website dated 30 July 2018 which equated “the current PAP leaders” with the members of the Cabinet. See exhibit P23. This will be further elaborated below at [76].

75 Next, the ordinary reasonable man would also know that allegations of foreign policy screw-ups and tampering of the Constitution were matters which involved decisions made by the Cabinet which is the apex of the Government. In this context, clearly the Disputed Phrase would be understood by the ordinary reasonable man to be an imputation concerning members of the Cabinet.

76 I will now consider Xu’s claim that the Disputed Phrase referred to the Oxley Road dispute and “did not have anything to do with individual members of the Cabinet of Singapore”. As mentioned above, he also claimed that it was subject to many possible and reasonable interpretations. With respect, I rejected these claims. I accepted the Prosecution’s submission that the Disputed Phrase was made with reference to the “PAP leadership” which Xu must have known would be construed as a reference to members of the Cabinet. Firstly, Xu conceded that the Cabinet was responsible for all government policies and day-to-day administration of the affairs of State. Hence, he must have known that the reference to the “present PAP leadership” in the Article would be construed as a reference to the members of the Cabinet. This was consistent with the previous article published on TOC website dated 30 July 2018 titled “Current Ministers are administrators of a system – not politicians or statesmen” (“the 30 July 2018 article”) (see exhibit P23). As highlighted by the Prosecution, “the article expressly equated the “current PAP leaders” with the members of the Cabinet by setting out a group photograph of the Cabinet members captioned (insultingly) as follows: “Most expensive cabinet in the word (Not the furniture type)””[note: 23]. In my view, this clearly showed that Xu, who was sole administrator and the chief editor of the TOC website, must have known that the “present PAP leadership” contained in the Article by De Costa would be construed by readers to refer to members of the Cabinet. Moreover, the 30 July 2018 article was published a just few weeks before the Article.

77 When questioned with reference to the first sentence and second sentence in the Paragraph, whether the PAP leadership had essentially resulted in “an apparent lack of respect from foreign powers”, Xu conceded that it would be a factor[note: 24]. Hence, I found that Xu knew that the first sentence was linked to the second sentence in the Paragraph. Consequently, Xu would have known that the imputation in Disputed Phrase referred to members of the Cabinet.

78 Next, I rejected Xu’s suggestion that the imputation of “corruption at the highest echelons” was a general reference to the Oxley Road dispute as it did not sit well in the context of the Paragraph which referred to “tampering of constitution”, “multiple policy screw-ups” and “corruption at the highest echelons”. In any event, it was also common knowledge that the Cabinet played a leading role in resolving the Oxley Road dispute. Hence, the reliance on the Oxley Road dispute did not militate against my finding that the imputation in the Article concerned members of the Cabinet.

79 For the reasons stated above, I also rejected De Costa’s contention that the “corruption at the highest echelons” was in reference to the Oxley Road dispute or linked to some corporate scandals or the elite members of society.

80 In the circumstances, I found both the accused persons had made an imputation of corruption in the Article concerning members of the Cabinet of Singapore.

Ordinary Meaning of Corruption

81 Clearly any allegation of corruption against members of the Cabinet is a very serious allegation and has the potential to “eat at the fabric of society; it would erode the efficiency of Government; it would filter down to all levels and affect the basis on which decisions were taken.”[note: 25] In my view, an ordinary reasonable person would also infer that the Disputed Phrase in the Article, read in its context, referred to illegal, fraudulent or dishonest conduct by members of the Cabinet. Xu testified that one can be morally corrupted but not criminally corrupt. But there was no objective evidence or context to support this suggestion. In my judgment, given the context of the Paragraph, I did not think any ordinary reasonable person would doubt the ordinary meaning of corruption as defined in the Oxford Advanced Learner’s Dictionary to be “dishonest or illegal behavior especially of people in authority”. The ordinary meaning of corruption was also evident in the material published by the TOC dated 22 September 2018 (see exhibit P20 and exhibit P21) as involving some kind of illegal, fraudulent and dishonest conduct on the part of those in power and as illustrated by the graphic used by TOC as passing money from one to another. I, therefore, rejected the suggestion that the Disputed Phrase, when read in its proper context, can be read as morally corrupted but not criminally corrupt. For the avoidance of doubt, it was also my view that no one would doubt that the imputation of “corruption in the highest echelons” clearly falls within the ambit of Explanation 4 to Section 499 of the Penal Code.

82 In the circumstances, I held that the phrase “corruption at the highest echelons” in the context of the Article, would reasonably be inferred by the ordinary reasonable person as there being some illegal, fraudulent or dishonest conduct by members of the Cabinet. It was certainly a serious scurrilous allegation which the accused persons knew would harm the reputation of the members of the Cabinet of Singapore.

Allegation of Defective Charge

83 I noted that the charge against the accused was for publishing the imputation in the offending Paragraph concerning members of Cabinet, knowing that such imputation would harm the reputation of members of the Cabinet and not against a particular individual. In this respect, De Costa contended that the charge lacked particulars and was defective as the precise identity of the persons harmed was not disclosed. In support of this contention, he relied on the Malaysian case of PP v Mohamad Bin Sabu [2017] 10 MLJ 27313 (“Mohamad Bin Sabu”).

84 With respect, unlike Mohamad Bin Sabu, I agreed with the Prosecution that the present case concerned “members of the Cabinet of Singapore” which comprised of a small determinate body whose identities were plainly identifiable. Accordingly, I rejected the submission that the charge lacked particulars and was defective.

Members of Cabinet are persons within the ambit of Section 499 of the Penal Code

85 De Costa relied on 3 cases, namely, the Indian case of Municipal Board Konch v Ganesh Prasad Chaturvedi [1952] A.I.R 39 Allabahad 114 (“Municipal Board”), the House of Lords decision in Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534 (“Derbyshire (HL)”) and the case of Attorney-General v Ting Choon Meng and anor appeal [2017] 1 SLR 373 (“Ting Choon Meng”), to support his contention that Cabinet was an entity or government which did not fall within the definition of “person” under Section 499 of the Penal Code.

86 With respect, the above submission was without any merits. In the present case, the charge against the accused was for the defamatory imputation concerning “members of the Cabinet of Singapore” and not the Cabinet. In my view, members of the Cabinet are clearly natural persons within the ambit of Section 499 of the Penal Code. As to the case of Municipal Board, the holding was consistent with Exception 1 to Section 499 of the Penal Code. In respect of Derbyshire (HL), it held that a local authority (such as a city council) did not have a right to maintain an action in civil suit for damages. However, the present case concerned a criminal proceeding commenced by the Public Prosecutor. Moreover, Explanation 2 to Section 499 of the Penal Code read with Section 11 of the Penal Code clearly states that “a company, or an association or a collection of persons as such” may be defamed. In any event, as was pointed out by the Prosecution, the application of the Derbyshire principle has been explicitly doubted by VK Rajah J (as he then was) in Chee Siok Chin and others v Minister for Home Affairs and anor [2006]1SLR (R) 582. Accordingly, I rejected the application of the Derbyshire principle into our local landscape. Finally, in the case of Ting Choon Meng, the Court of Appeal, in the context of Section 15 of the Protection from Harassment Act (“POHA”) held that “person” did not extend to non-natural person. However, the present case involved Section 499 of the Penal Code and Section 11 of the Penal Code defines “person” to include company or association or body of persons. And Explanation 2 of Section 499 of the Penal Code provides that an association or collection of persons or company can be defamed. Hence, Ting Choon Meng was clearly distinguishable as the regime provided under POHA is entirely different from that provided by the Penal Code. In any event, as mentioned earlier, the present case concerned members of the Cabinet who are clearly natural persons and not an entity.

Knowledge that the imputation would cause harm to reputation

87 As there was no contention that the imputation in the Article was intended to be read by visitors to the TOC website, I will now proceed to consider Xu’s claim that he had no knowledge that the Disputed Phrase would harm the reputation of the individual members of the Cabinet of Singapore. With respect, I rejected this claim. In any event, as stated above, I have already made a finding that the imputation of there being “corruption at the highest echelons” referred to members of the Cabinet of Singapore and that it was a scurrilous allegation that would harm their reputation.

88 It must also be highlighted that as the chief editor of TOC website, Xu would have read and edited the Article before it was published on its website. In fact, Xu did make brief editorial changes to the Article before the publication. Considering all the circumstances, I found that Xu must have known that the imputation of corruption in the Article concerned members of the Cabinet and would harm their reputation. In this respect, any allegation of corruption against members of the Cabinet clearly has the potential to “eat at the fabric of society; it would erode the efficiency of Government; it would filter down to all levels and affect the basis on which decisions were taken.”[note: 26] Hence, no one would doubt that such scurrilous allegation would harm the reputation of the members of the Cabinet.

89 Similarly, I had no doubt that De Costa must have known that an imputation of corruption would harm the reputation of members of the Cabinet given the serious nature of the imputation as stated above. De Costa, in the Article, referred to the ”multiple policy and foreign screw-ups” and the alleged “tampering of the Constitution” which he admitted were matters necessarily determined by members of the Cabinet[note: 27]. Hence, by stating “PAP leadership” and “corruption at the highest echelons” in the Article, De Costa clearly knew that the imputation would be construed as concerning members of the Cabinet and would harm their reputation. This conclusion was fortified by the fact that De Costa attempted to credit the allegations of corruption to the statements made by the Lee siblings and to distance himself from the imputation of corruption made by him.[note: 28] If it were not defamatory and would not harm the reputation of the members of the Cabinet, there would be no reason for him to state that the allegations of corruption were mere references to the statements made by the Lee siblings.

The Second Exception to Section 499 of the Penal Code (the “Second Exception”)

90 Xu did not submit on the application of the Exceptions to Section 499 of the Penal Code. Hence, I will deal only with De Costa’s claim that the Second Exception was applicable[note: 29].

91 For the Second Exception to apply, the provision required De Costa to show that he had acted in good faith which I found was lacking. Some of the factors relevant to determine good faith included whether any enquiry was made by the accused before he made the imputation and whether there was any reason to accept the accused’s claim that he was satisfied that the imputation was true (Harbans Singh Sidhu v PP [1971–1973] SLR(R) 610 at [11]) (“Harbans Singh”). In the present case, I found that there was no evidence at all of corruption against members of the Cabinet. I also found De Costa did not make any effort to ascertain the truth of the facts before making the imputation. Although De Costa alleged that his imputation was based on the statements made by the Lee siblings but he did not make any enquiries or clarifications from the Lee siblings. Clearly on the facts and circumstances of the case, there was no good faith shown by De Costa. Accordingly, I was of the view that De Costa cannot avail to himself the Second Exception.

Conclusion on the CDC

92 In light of the above, I was satisfied beyond a reasonable doubt that both the accused persons were guilty of their respective criminal defamatory charge. Accordingly, I found them guilty and convicted each of them of their respective offence under Section 500 of the Penal Code.

Sentencing Submissions by Prosecution

93 Based on the serious nature of the defamatory allegation and the egregious manner in which De Costa abused Sim’s trust in committing the CMA charge, the Prosecution submitted for a sentence of at least 3 weeks’ imprisonment for the CDC faced by each of the accused persons and a sentence of at least 3 months’ imprisonment for the CMA against De Costa[note: 30].

Submissions on Sentence by Xu

94 Counsel for Xu relied on the case of Sulochana d/o Tambiah Dirumala Sakkrawarthi v Rajalakshimi Ramoo [2004] 1 SLR (R) 214 (“Sulochana”) and also contended that Xu’s culpability was low and the harm caused was low. In the circumstances and in light of the mitigating factors, it was submitted that a fine of $4,000 be imposed for the criminal defamation charge faced by Xu. It was also contended that the fact that no civil action had been commenced against Xu further supported the submission for a fine.

95 In support of the submission that Xu’s culpability was low, Xu claimed that he had complied with the IMDA’s direction to remove the Article from the TOC website within a few hours of IMDA’s request. Next, Xu was co-operative with the authorities at all times by providing the information required by IMDA pursuant to the Notice of Requisition dated 18 September 2018. Xu also claimed to be co-operative with the Police during his statement taking. Finally, Xu highlighted that he was not the author of the Article. His role was merely in the publication of the Article.

96 Next, on the level of harm caused, Xu contended that the Article was not widely publicized as the Article, which was published on 4 September 2018, was taken down on 18 September 2018. The Article was not published on any other social media and it attracted only 1,132 pageviews with most views done on 4 and 5 September 2018. In support of the contention, counsel also relied on the statistics from Google Analytics. There were zero views on 11, 12, 13, 15, 16 and 17 September 2018. Hence, it was submitted that there was limited public reach and impact.

97 Counsel also contended orally that [14] of the Prosecution’s reply submissions on sentence (“PRS”)[note: 31] should not be a factor for the court’s consideration in sentencing. In this respect, counsel submitted that there was no evidence of the alleged “broader insidious agenda” on the part of Xu or that Xu had a “penchant for publishing articles that cast aspersions on Government without basis”.

98 It was also submitted that the case of Harbans Singh was an example of “the most heinous of conduct” referred to in Sulochana. Unlike Harbans Singh, it was contended that the nature of the defamatory remark in the present was far less vilifying and did not cross the custodial threshold.

99 Finally, it was highlighted that Xu was a first-time offender. His co-operation with the authorities should also be given mitigating weight.

Sentencing Submissions by De Costa

100 Counsel for De Costa submitted for an aggregate fine of $10,000. In this regard, counsel submitted for a fine of $5000, in default 1 week’s imprisonment for each of the 2 charges, namely, the CDC charge and CMA charge. Alternatively, if custodial sentences were warranted for each of the 2 offences, counsel contended that the sentences imposed should run concurrently as the offences arose from the same transaction[note: 32].

101 In respect of the CDC, counsel relied on Sulochana to contend that generally imprisonment was warranted in cases where the conduct was most heinous or where an offender has shown himself to be unresponsive to financial deterrence.[note: 33] In the present case, it was submitted that this was not one of the “most heinous of conduct” of criminal defamation. Counsel argued that the nature of the defamatory remark and the phrase “highest echelons” by itself did not make express reference to members of the Cabinet as a whole. That it was not a deliberate attack on the members of the Cabinet as a whole but was an “authorial misstep”.

102 In the circumstances, it was submitted that the Accused’s culpability was low and a fine of $5000 was appropriate for the CDC.

103 As for the CMA charge, it was submitted that the Accused’s access into Sim’s Yahoo account could be premised on a mistaken belief as Sim had earlier permitted the Accused’s access to his account. It was also argued that there was no abuse of Sim’s trust as Sim did not take active steps to deny the Accused’s access to his account. Consequently, the Accused’s prior instances of using Sim’s accounts should not be an aggravating factor.

104 De Costa denied that there was deliberation and premeditation as contended by the Prosecution.

105 It was also contended that the fact that Sim was arrested and sentenced to imprisonment as a result of drug possession should not be an aggravating factor.

106 In respect of the CMA charge, counsel also referred to a number of sentencing precedents where fine and custodial sentences had been imposed. The fine imposed can be as low as $3000 while the longest custodial sentence imposed was 12 months’ imprisonment.

Sentencing Considerations

107 In my view, given the serious nature of the defamatory allegation concerning members of the Cabinet and the egregious manner in which De Costa had abused Sim’s trust in committing the CMA charge, the main sentencing consideration must be one of deterrence in respect of both the CDC and CMA charge.

108 Having considered the circumstances of the case, I was of the view that the custodial threshold for both the offences has been crossed. I will now give my reasons.

109 In respect of the CDC, the punishment prescribed is an imprisonment term up to 2 years or fine or both. On the other hand, for the CMA charge, a first-time offender may be fined up to $5000 or imprisoned up to 2 years or both.

110 In determining the seriousness of the CDC, I adopted the approach set out in Sulochana at [23].

111 In the present case, the defamatory remark concerned members of the Cabinet of Singapore. I found the defamatory allegation of corruption was serious and grave in nature. I agreed with the Prosecution that it was “particularly aggravated because the defamation is imputed against members of the Cabinet, where reputation, moral authority and leadership are integral to the proper running and legitimacy of governmental operations.”[note: 34] As highlighted by the Court of Appeal in Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2010] 4 SLR 357 at [13] “d(D)efaming a political leader is a serious matter in Singapore because it damages the moral authority of such a person to lead the people and the country … Without a clean or credible reputation, their moral authority to lead the people is compromised”.

112 Next, the defamatory remark was published publicly on the TOC website. That being the case, the reach of the defamation would have been very wide as it could potentially be viewed by anyone in the world so long as one has internet access. Moreover, the TOC website had a wide readership[note: 35]. Based on Xu’s admission, there were 1,132 pageviews within a short duration[note: 36]. The publication of the defamatory Article through the internet was further aggravated by the assertion of Xu that TOC was holding itself out as “an independent media platform to turn to for social political news and views” with the aim of providing “honest, objective, independent and factual reporting”[note: 37]. In this context, the defamatory Article was more likely to be believed given TOC’s assurances of integrity and independence. In the circumstances, it would be more aggravating[note: 38].

113 In respect of the argument that Xu’s culpability was low as he was not the author of the defamatory Article, I agreed with the Prosecution that “t(T)he fact that he was not the author of the Article also does not assist him – he was instrumental in publishing the defamatory allegations online, and did so with full knowledge of the Article’s contents.” Moreover, as highlighted by the Prosecution, “Xu took no steps whatsoever to verify the contents of the defamatory Article or the true identity of its author before he approved its publication.”[note: 39] His complete lack of care was certainly egregious considering the scurrilous defamatory Article alleging corruption against members of the Cabinet.

114 With the greatest respect to counsel, I disagreed with the submission that the fact that civil suit was not commenced by the defamed parties against Xu would justify a non-custodial sentence. In my view, whether the custodial threshold was crossed would depend on the circumstances of each case including the factors stated at [23] of Sulochana. In any event, counsel did not cite any authority in support of his submission.

115 It is trite that the fact that both accused persons had no antecedents was a neutral factor.

116 I also found that both the accused persons had shown no remorse. Their lack of remorse was heightened by raising the defence of unconstitutionality which was clearly fallacious and unmeritorious.

117 Counsel for Xu submitted orally in court that [14] of the PRS should not be considered for sentencing primarily on the grounds that they were not relevant factors and that there was no evidence to support the allegation of “a broader insidious agenda of publishing articles that cast unwarranted aspersions against the Government and members of Cabinet.”

118 It is trite that a sentencing court can only take into account proven or admitted facts for consideration in determining the sentence. In reply to counsel’s submission above at [118], the Prosecution submitted that the Court could consider [14] of the PRS as it provided the context at which the uploading of the defamatory Article was done and the evidence adduced suggested that it was part of the of “a broader insidious agenda of publishing articles that cast unwarranted aspersions against the Government and members of Cabinet.” I agreed with the Prosecution that [14] of the PRS indicated the motivation behind Xu’s conduct and rightly should be considered by the court in assessing his culpability in determining the appropriate sentence. In the present case, the evidence adduced did support the contention of the Prosecution that there was this broader insidious agenda harboured by Xu. This can be inferred from the fact that Xu farcically attempted “to rationalise that the “fundamental right to freedom of expression” allows anyone to “express [a] belief” that “have not been proven untrue” against politicians, government bodies and ministries”[note: 40]. The inference was further buttressed by Xu’s election during his cross-examination not to comment when it was put to him that he had no evidence to prove that the members of Cabinet had acted in a corrupt fashion[note: 41]. Clearly these reflected the sort of philosophy that underpinned the publication of the Article by Xu. And such attitude, in my view, was a relevant sentencing consideration. It was certainly not justifiable for anyone to publish an infringing Article based on one’s belief on “circumstances that have not been proven to be untrue[note: 42]”. In my view, Xu’s motive and lackadaisical attitude was a culpability enhancing factor which warranted an appropriate deterrent response.

119 With the greatest respect to the Prosecution, I was of the view that some credit should be accorded to Xu for his timely compliance with the instructions of IMDA to take down the offending Article and for his co-operation to the authorities in furnishing the information required pursuant to the Notice of Requisition dated 18 September 2018. On the other hand, in my judgment, these alone would not be sufficient to avoid a custodial sentence in view of the serious and scurrilous allegation concerning members of the Cabinet, the mode and extent of the publication. I also noted that failure to comply with the IMDA’s direction could render Xu to be prosecuted under the Broadcasting Act. Xu’s compliance with IMDA’s instructions could therefore be construed as merely saving himself from prosecution. In any event, as highlighted by the Prosecution, “both De Costa and Xu made no effort whatsoever to ascertain the truth of the facts before, respectively, writing and sending out the Article, and approving the Article for publication”.[note: 43] This clearly enhanced the accused’s culpability which justified an appropriate custodial sentence.

120 With respect, I rejected De Costa’s submission that the defamatory phrase “corruption at the highest echelons” was “an authorial misstep”. In this respect, I agreed with the Prosecution that “it was never alleged by De Costa during the trial that his use of the defamatory phrase was an “authorial misstep”; indeed, this Court would note that he had no compunction during trial of standing by his assertions. In any event, the allegation is contrary to the mens rea element of De Costa’s Criminal Defamation charge, which has been proven beyond a reasonable doubt.”[note: 44]

Sentencing Precedents for CDC

121 The parties referred to 2 dated local criminal precedents, namely, Harbans Singh and Sulochana in their respective sentencing submissions. In Harbans Singh, the offender was sentenced to six months’ imprisonment for calling the (then) Prime Minister Lee Kuan Yew a scoundrel, gangster, kidnapper, and “no 1 public enemy” during an election campaign speech. In Sulochana, the offender was fined $2,000 on the criminal defamation charge for calling the complainant a prostitute whose children were all born of different men. The remark was made to only three people.

122 The High Court in Sulochana held at [22] that for a criminal defamation offence, the courts should not, as a general rule, resort to imprisonment except for the most heinous of conduct or where the offender has shown himself to be unresponsive to financial deterrence. I agreed with the Prosecution that Sulochana must be viewed in its context. I agreed that the High Court’s “observation must be viewed in the specific factual context of Sulochana where the reach of the defamatory comment is limited is also evident by his statement that imprisonment ought not to be imposed “except for the most heinous of conduct”, which His Honour did not define. It is trite that the court must carefully explore the full spectrum of sentences in determining the appropriate sentence: Vasentha d/o Joseph v PP [2015] 5 SLR 140 (at [46]) and GBR v PP and another appeal [2017] SGHC 296; [2018] 3 SLR 1048(at [31]).”[note: 45]

123 Unlike Sulochana where the defamatory remarks were made orally and to only three people, in the present case, the reach of the defamatory Article through the Internet would have been far wider and with greater impact. The defamatory Article which concerned members of the Cabinet was also serious in nature.

124 As in Harbans Singh, the defamatory Article in the present case concerned members of the Cabinet who were also holders of public office. And considering the nature of the defamatory remark and the mode and extent of the publication, the present case certainly warranted a custodial sentence but not to the extent of six months’ imprisonment as was imposed in Harbans Singh.

Sentence for CDC

125 Considering the severity of the allegation, the standing of members of the Cabinet as well as the wide extent of the publication, I was of the view that the custodial threshold has been crossed. Having considered the parties’ submissions on sentence, the circumstances of the case, the mitigating factors and the aggravating factors stated above, I sentenced each of the accused to 3 weeks’ imprisonment for the offence of criminal defamation under Section 500 of the Penal Code.

Sentence for CMA Charge

126 It was not disputed that factual matrices of offences under Section 3(1) of the CMA are wide-ranging. The High Court in Liew Cheong Wee Leslie v PP[note: 46] (“Liew Leslie”) also held at [6] that “conduct constituting an offence under s3 of the Act can vary widely in scope and nature”. As such, the sentencing precedents referred to by the parties may not be a useful comparison but would serve as a reference for assessing the factors of culpability and harm caused. In any event, I noted that in all the sentencing precedents cited , except for the case of Liew Leslie, the court had imposed an imprisonment term ranging from 3 weeks to 12 months. The High Court in Liew Leslie also held at [6] that “an offence under Section 3(1) of the CMA may similarly attract a custodial sentence if sufficiently grave and serious even though no damage was caused.”

127 In respect of the CMA charge against De Costa, I found that the culpability on the part of the De Costa was high and that there was harm caused to Sim. The evidence clearly showed that there was a high degree of planning on the part of the accused De Costa by misusing Sim’s Yahoo Account to send out the infringing email and signing off as “Willy Sum” thereby shielding his true identity. It was clearly a measure done to avoid detection.

128 Another aggravating feature was that De Costa had abused the friendship and trust reposed in him by Sim[note: 47]. As highlighted by the Prosecution, “Sim trusted and relied on De Costa to help him during an extremely difficult period in his personal life, when he was facing a myriad of financial, marital and legal difficulties”[note: 48]. For his own motive, De Costa had exploited Sim’s trust by sending the email containing the defamatory statement using Sim’s Yahoo account to TOC without authorization.

129 With respect, I rejected the argument that De Costa did not abuse Sim’s trust as the latter was all along aware of the usage of his account. As stated above, I had accepted Sim’s explanation why he had continued to allow De Costa’s access to his online accounts and the reasons why he did not reset his password to his Yahoo Account. In particular, Sim had allowed De Costa’s access to his Yahoo Account not for all purposes but for his help relating to his personal matters concerning his bankruptcy, HDB matters and traffic summons.

130 Next, I found there was persistent offending by De Costa in accessing Sim’s online accounts without his authorization for years and across multiple internet platforms. Besides the Yahoo Account, De Costa had also accessed without authorization Sim’s Gmail Account and Facebook Account. In my view, this heightened De Costa’s culpability. With respect to counsel, I also rejected the submission that De Costa could have acted on a mistaken belief that he was allowed to use Sim’s Yahoo Account for all purposes as this was contrary to the evidence and my findings.

131 In respect of harm, I found Sim had suffered harm. As a result of the unauthorized access of Sim’s online account, Sim was investigated by the Police and had his house searched. During the search, drugs were found in his possession. Consequently, Sim was charged, convicted, and jailed. After his release from imprisonment, Sim continued to assist in the police investigation and had to testify in court. He was “on the verge of breakdown.”[note: 49] For the avoidance of doubt, I agreed with the Defence that the fact that Sim was arrested and jailed as a result of the drug possession was not an aggravating factor as it would fly in the face of logic. Indeed, “the Prosecution is not submitting that De Costa should be held responsible for Sim’s imprisonment for drug possession. Rather, as noted in the Prosecution Sentencing Submission (“PSS”) at [21], real harm was caused to Sim as he was implicated in police investigations because the defamatory Article was sent in his name by De Costa. As a result, even two years after the incident, Sim still had to be involved in the present trial, during which his private life was unfairly scrutinised and he was subject to appalling aspersions (see PSS at [24]). In this way, De Costa has caused Sim substantial inconvenience and emotional pain which led Sim to the “verge of breakdown””[note: 50]. Such pain and harm caused to Sim was a relevant sentencing factor. In my view, this was consistent with the case of Lim Siong Khee v PP [2001]1SLR (R) 631 at [21] where the High Court imposed a jail term of 12 months on the offender for wrongfully accessing the victim’s e-mail account to send out contemptible e-mails to cause harm to the victim’s reputation. In the present case, as mentioned above, Sim was subjected to police investigations in respect of the Article and subjected to appalling aspersions during the trial[note: 51]. I had no doubt that significant harm was caused to Sim. In fact, Sim was “on the verge of breakdown”.

132 Given the nature and circumstances of this case, I was of the view that a deterrent sentence was warranted. I also found no significant mitigating factors raised in the mitigation plea by De Costa. On the contrary, by raising irrelevant matters relating to Sim’s matrimonial matters, unrelated criminal history and the patently false allegation that Sim’s prior criminal actions had “caused such a huge loss to Singapore’s economy”[note: 52] during the trial, indicated the lack of remorse on the part of De Costa. He also alleged that Sim had conjured false evidence against him due to threats by the Police[note: 53]. Such conduct displayed by De Costa warranted a deterrent response.

133 Considering the circumstances of the case, the culpability of the accused De Costa and the harm caused, the lack of remorse and having heard the sentencing submissions of the parties, I was of the view that an imprisonment term of 3 months was appropriate. In my view, the sentence was consistent with the sentencing precedents cited by the parties.

134 Counsel submitted for the sentences to run concurrently. With respect, I was of the view that both the offences were clearly distinct with different legally protected interests. In respect of CDC, it concerned members of the Cabinet. As for the CMA charge, it was for accessing Sim’s Yahoo Account without authority. It was clearly not a single invasion of the same legally protected interest under the one-transaction rule. I therefore ordered both the sentences to run consecutively. Hence, for the accused De Costa, the total sentence was an imprisonment term of 3 months and 3 weeks. In my view, the aggregate sentence was clearly not substantially higher than the normal level of sentences imposed for the most serious of the individual offences as shown in the sentencing precedents cited by the parties. It was also proportionate to De Costa’s criminal conduct and not crushing.

Conclusion

135 The accused Xu had been advised by his counsel and chose to serve his sentence of imprisonment as of 21 April 2022 despite filing the notice of appeal against his conviction and sentence.

136 De Costa, on the other hand, was allowed to defer serving his sentence to 4 May 2022. However, on 29 April 2022, De Costa applied and was granted bail pending appeal.[Context] [Hide Context]

^{[note: 1]}The article is exhibited as P1 (annex A in the ASOF).

^{[note: 2]}NE (Day 3) p43 lines16 -17

^{[note: 3]}NE (Day 3) p50 lines 9-15

^{[note: 4]}NE (Day 6) p 50 line 18 – p 51 line 10

^{[note: 5]}NE (Day 5) p 56 lines 8 – 11.

^{[note: 6]}NE (Day 5) p 56 line 12.

^{[note: 7]}NE (Day 7) p92 lines 17-24

^{[note: 8]}NE (Day 3) p 50 line 9 – 15

^{[note: 9]}NE (Day 3) p 17 lines 11 – 14.

^{[note: 10]}Prosecution’s Trial Bundle of Documents (“trial bundle”) at p 111.

^{[note: 11]}PCS at [29].

^{[note: 12]}PCS at [39].

^{[note: 13]}NE (Day 3) p 42 line 6 – p 43 line 6.

^{[note: 14]}Prosecution’s trial bundle at p79

^{[note: 15]}PCS at [32].

^{[note: 16]}NE Day 3 p14 lines 14-15, p19 lines 13-15, p29 lines 9-11, p30 lines 15-17

^{[note: 17]}Prosecution’s trial bundle at p87.

^{[note: 18]}PCS at [45].

^{[note: 19]}Xu’s Closing Submissions dated 27 September 2021 (“XCS”) at [3].

^{[note: 20]}NE (Day10) p2 line 19- p3 line 29

^{[note: 21]}NE, Day 9, p11, L13-30, p13, L12-21.

^{[note: 22]}PCS at [48]-[49]

^{[note: 23]}PCS at [59]

^{[note: 24]}NE (Day 9) p58 lines 5-22

^{[note: 25]}Per FA Chua in Lee Kuan Yew v Jeyaretnam Joshua Benjamin [1978-1979]SLR (R) 24 at [28]

^{[note: 26]}Per FA Chua J in Lee Kuan Yew v Jeyaretnam Joshua Benjamin [1978 – 1979] SLR(R) 24 at [28]

^{[note: 27]}NE (Day 8) p 81 line 31 – p 82 line 3; NE (Day 8) p 83 line 16 – p 84 line 28.

^{[note: 28]}NE (Day 8) p 113 line 20 – p 114 line 3.

^{[note: 29]}See De Costa’s Closing Submissions at [97]

^{[note: 30]}See Prosecution’s submissions on sentence dated 3^rd December 2021 (“PSS”) at [2].

^{[note: 31]}Prosecution’s reply submissions on sentence dated 28^th March 2022 (“PRS”).

^{[note: 32]}See De Costa’ mitigation plea dated 8^th March 2022.

^{[note: 33]}See De Costa’s mitigation plea at [5].

^{[note: 34]}PSS at [6]

^{[note: 35]}NEs (Day 9) p 20 line 28 – p 21 line 5 where Xu agreed that the website had over a million views a month and 220,000 followers.

^{[note: 36]}Xu’s Mitigation plea at [14]

^{[note: 37]}NEs (Day 9) p 16 line 29 – p 17 line 13.

^{[note: 38]}In the case of Lee Kuan Yew and another v Vinocur John and others and another suit [1995] 3 SLR(R) 385, the High Court found at [65] that the tort of defamation was more aggravated considering the standing of the publisher and given that the defamatory passage was published in a publication with worldwide and local circulation.

^{[note: 39]}PRS at [12] and [13].

^{[note: 40]}See PRS at [14] and NE (Day 9) p 91 lines 15–16. See also exhibit P26.

^{[note: 41]}NE (Day 9) p 91 lines 22 – 24

^{[note: 42]}Exhibit P26

^{[note: 43]}PSS at [14]

^{[note: 44]}PRS at [6]

^{[note: 45]}PSS at [12]

^{[note: 46]}Liew Cheong Wee Leslie v PP [2013] SLR 170

^{[note: 47]}Cheong Siat Fong v PP [2005] SGHC 176 at [23]

^{[note: 48]}PSS at [19]

^{[note: 49]}NEs (Day 3) p 51 lines 18 – 31

^{[note: 50]}PRS at [8].

^{[note: 51]}NEs (Day 4) p 30 lines 7 – 22; p 24 line 7 – p 25 line 20; p 31 lines 12 – 30.

^{[note: 52]}NEs (Day 4) p 25 lines 18 – 19.

^{[note: 53]}NEs (Day 5) p 56 lines 7 – 11