High Court dismisses constitutional challenge in TOC defamation case

Amir Hussain
Senior Reporter
Daniel Augustin De Costa (wearing a tie) was charged with one count of criminal defamation and another count of unauthorised access to computer material last year. (Yahoo News Singapore file photo)

SINGAPORE — The High Court on Tuesday (2 June) dismissed a man’s arguments that his charge for defaming members of Cabinet via an article in 2018 was unconstitutional.

In throwing out Daniel Augustin De Costa’s case, Justice Aedit Abdullah said “no novel constitutional issue arises requiring the determination of a higher court”.

De Costa, through his lawyer M Ravi, had argued that his prosecution infringes on his right to equality before the law. Article 12 of the Constitution guarantees that all persons are equal before the law and entitled to the equal protection of the law.

De Costa’s alleged offence involved repeated allegations which had been made by Lee Hsien Yang and Lee Wei Ling, the younger brother and younger sister respectively of Prime Minister Lee Hsien Loong, the lawyer contended.

Saying that the law should be enforced equally, the lawyer argued that if the Lee siblings are not prosecuted, then De Costa should similarly not be prosecuted.

Background of the case

On 4 September 2018, De Costa allegedly submitted an article to socio-political website The Online Citizen (TOC) using the name “Willy Sum”, using an email account which he had purportedly accessed without authorisation. TOC editor Terry Xu Yuanchen then published the article, which has since been taken down.

The Infocomm Media Development Authority (IMDA) made a police report on 5 October 2018 stating that the article had alleged corruption against some persons. Among other things, the article stated that “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”.

On 13 December 2018, Xu and De Costa were both charged at the State Courts with criminal defamation in relation to the article. De Costa was also charged with one count of unauthorised access to computer material.

De Costa’s lawyer Ravi unsuccessfully applied to refer the case to the High Court in November last year. He argued, among other things, that the charge was unconstitutional for infringing on Article 9 which deals with personal liberty, and Article 14 which covers freedom of speech, assembly and association.

The lawyer then made a second application in January to refer the case to the High Court. This time, he argued that that the charge contravened the Constitutional provision for equality before the law, in light of the non-prosecution of the Lee siblings for allegations of a similar, if not more serious nature.

Application not frivolous or vexatious: Judge

Deputy Chief Prosecutor Mohamed Faizal had argued that De Costa’s application was frivolous and vexatious, and asked for costs against his lawyer Ravi personally.

Among other things, the prosecution team argued that Ravi had pursued an unmeritorious application with no legal merit and abused the administration of justice.

Meanwhile, Ravi counter-argued for cost against the prosecution for making a frivolous and vexatious costs application against him. The lawyer said it was the third time that the State had made an application for costs against him in relation to the case.

Justice Aedit made no costs order against either party. “While the application lacks merit, this does not necessarily mean that the application is frivolous, or for collateral purpose or to delay,” he said.

Added the judge, “Here, there has been no lack of expedition, unreasonableness, impropriety or lack of reasonable competence in conducting the present proceedings. In addition, judicial review and public law proceedings protect the public interest and seek to hold to account those who exercise powers, and should not be impeded by the threat of adverse cost orders.”

Cost orders against a lawyer personally should only be made in exceptional circumstances, the judge said.

A pre-trial conference for Xu and De Costa’s cases will be held at the State Courts later this month.

The maximum punishment for criminal defamation is up to two years’ jail and a fine. For unauthorised access to computer material, the maximum penalty is up to two years’ jail and a fine of up to $5,000.

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