High Court judge rejects third constitutional challenge by The Online Citizen writer accused of criminal defamation

SINGAPORE — A High Court judge has dismissed a third constitutional challenge by a man who wrote an article for The Online Citizen (TOC) website alleging that there was corruption in the Cabinet. 

Delivering the reasons for his decision, Justice Aedit Abdullah said on Tuesday (June 2) that Daniel De Costa Augustin, 37, who is accused of criminal defamation, did not raise any new constitutional issues that requires the determination of a higher court.

On Dec 13, 2018, De Costa was charged in the State Courts alongside TOC chief editor Terry Xu with criminal defamation, after an article titled “The Take Away from Seah Kian Ping’s Facebook Post” was posted on the socio-political website, which alleged corruption in the Government.

De Costa had alleged “corruption at the highest echelons”, when he referred to comments made by Member of Parliament Seah Kian Peng, whose name was misspelt, and Law and Home Affairs Minister K Shanmugam on a meeting in August 2018 between Malaysian Prime Minister Mahathir Mohamad and some Singaporean activists.

De Costa was also charged with using another person’s email account to send the article to TOC without the owner’s consent.

The trial of De Costa and Xu was due to start on Nov 27 last year in the State Courts, but De Costa’s lawyer M Ravi argued that the charges were unlawful on constitutional grounds, and that these issues should be referred to the High Court.

The main question that Mr Ravi raised was whether the Cabinet should be considered a “person” with a reputation to be protected under the law, which was dismissed by District Judge Christopher Tan that day.

A second application was then filed by De Costa to question whether the charges against him contravened Article 12 (1) of Singapore’s Constitution, which states that “all persons are equal before the law and entitled to the equal protection of the law”.

Mr Ravi had argued on Jan 21 that Attorney-General Lucien Wong had committed a prima facie breach of Article 12(1), given that it did not prosecute Prime Minister Lee Hsien Loong’s siblings, Dr Lee Wei Ling and Mr Lee Hsien Yang.

The siblings wrote a lengthy joint statement on June 14, 2017 that their brother, PM Lee, had abused his position to challenge the court-proven will of their late father Lee Kuan Yew and undermined their father’s wish to demolish their family home on 38 Oxley Road.

“By prosecuting Mr De Costa and not the Lee siblings, which have made fundamentally similar allegations, if not more severe ones than Mr De Costa, the Attorney-General has offended Mr De Costa’s right to equality before the law, as enshrined in Article 12(1) of the Constitution,” Mr Ravi said then.

Mr Ravi then clarified that he was not asking for the Lee siblings to be prosecuted, but if they were not prosecuted, then his client should not be prosecuted either.

District Judge Tan, again, dismissed the application, which prompted Mr Ravi to file a criminal motion to compel the State Courts to refer his question to a higher court.

On Tuesday, Justice Aedit said that while he agreed with the prosecution that the principles governing prosecutorial discretion “have been conclusively enunciated by the Court of Appeal”, he disagreed with their request for Mr Ravi to pay legal costs for pursuing the motion.

“Such orders should be ordered only in exceptional circumstances,” Justice Aedit said.

“It may be that here, (Mr Ravi) faced an uphill task given the state of the law, but I do not find that the case was so hopeless that it could be inferred that the application was launched with recognition that there was no possibility of success.”

Justice Aedit added that it “may have been misplaced optimism”, but it was not enough for him to order costs personally against Mr Ravi.

Mr Ravi told reporters after the verdict that he does not intend to file any more applications.

He added that a pre-trial conference has been scheduled on June 23 for De Costa in the State Courts.