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The Online Citizen's Terry Xu and writer convicted of criminal defamation over article calling Cabinet corrupt

The Online Citizen's Terry Xu and writer convicted of criminal defamation over article calling Cabinet corrupt

Terry Xu (left) and Daniel De Costa at the State Courts on Dec 13, 2018. (Photo: Jeremy Long)

SINGAPORE: The chief editor of the now-defunct website The Online Citizen (TOC) was convicted of criminal defamation on Friday (Nov 12), along with a man who wrote a defamatory article for the platform under another person's name.

Terry Xu Yuanchen, 39, was found guilty of defaming members of the Cabinet of Singapore by approving the publication of a letter on Sep 4, 2018 that alleged "corruption at the highest echelons".

The article was sent in to TOC under the name Willy Sum, but Xu's co-accused Daniel De Costa Augustin, 38, was the real writer of the piece.

De Costa was convicted of a similar charge of criminal defamation and a second charge of unauthorised access to an email account not belonging to him, which he used to submit the article.

De Costa sent an email titled "PAP MP apologises to SDP" to theonlinecitizen [at] gmail.com from an Internet cafe in Chinatown on Sep 4, 2018, intending that the contents would be published on the TOC website.

On the same day, Xu approved the publication of the email sent to TOC from a person named Willy Sum, titled "The Take Away From Seah Kian Ping's Facebook Post". Mr Seah's name was misspelt.

The defamatory article said: "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 owner of the email account De Costa used, Mr Sim Wee Lee, testified at trial that he met De Costa while walking his dogs in 2005 or 2006 and they became friends.

He later allowed De Costa to use his email account to help Mr Sim settle his bankruptcy and housing matters, but later found out that De Costa had sent emails criticising government officers without his permission.

THE PROSECUTION'S ARGUMENTS

The prosecution urged the court to convict De Costa for the computer access charge, calling him "an unreliable and untruthful witness" with a "penchant for blatantly lying throughout his entire testimony".

Deputy Public Prosecutors Mohamed Faizal, Senthilkumaran Sabapathy and Sheryl Yeo said the imputation by De Costa and Xu that there was "corruption at the highest echelons" of the Singapore Government was "serious, baseless and clearly defamatory".

For the offence of criminal defamation to be made out, the prosecution had to prove beyond a reasonable doubt the following elements: That an imputation was made concerning a person via words, signs or visible representations, and that this was done with the intention of harming, or with the knowledge or reason to believe that it will harm the reputation of the person in question.

One of the exceptions that can act as a defence for criminal defamation is good faith. The prosecutors said the imputation was not made in good faith, saying that "good faith is clearly not present in this case". They added that evidence suggested De Costa acted out of malice because he was feeling "very aggrieved" when he wrote the article, as government departments did not respond to him when he wrote to them.

While Xu's lawyers said he was not relying on the defence of good faith, the prosecution said it was "obvious" that he did not act in good faith as his editorial process as chief editor of TOC was "lackadaisical if not completely non-existent".

"He had no means of verifying the identities of persons writing in to seek publication of various content," the prosecutors said. For example, Xu knew that "Willy Sum" was a name used to submit numerous pieces of content over the years, but he did not know if it was a real or fictitious name.

He also admitted that he would not be able to know if a person submitting content was a local or a foreigner whose singular aim is to sow discord.

"Despite the many protestations by De Costa and Xu during the course of the proceedings, this case is not, and has never been, about freedom of speech or about the need to hold the Government to account," said the prosecutors.

"Instead, as the evidence before this court shows, this case is really about whether individuals such as De Costa and Xu should be allowed to masquerade as others, misuse the email accounts of others and utilise online platforms as an insidious means to launch baseless and unsubstantiated attacks against other persons, and yet be expected to be shielded from liability despite the absence of any basis for such unwarranted attacks. The answer to this, we say, is obvious."

THE DEFENCE'S ARGUMENTS

Lawyers for Xu - Mr Choo Zheng Xi, Ms Priscilla Chia and Ms Yong Shi-Qian - argued that "corruption of the highest echelon" did not refer to individual members of the Cabinet.

Xu understood this phrase to be referring to the dispute with regard to 38 Oxley Road, the defence said, referring to the late Lee Kuan Yew's family property, which became the subject of court tussling by his children.

The defence also argued that the offence of criminal defamation is unconstitutional and is "an impermissible derogation of the right to freedom of speech".

Xu testified that he did not know that readers would interpret the phrase "highest echelons" to refer to members of the Cabinet, because the term was up to "one's interpretation and it does not point to anyone specific".

He had also "swiftly complied" with the Infocomm Media Development Authority's (IMDA's) direction on Sep 18, 2018 for the letter to be removed from TOC's website.

Xu's lawyers said there were civil remedies for members of Singapore's Cabinet, if they wanted to seek redress for any harm to their reputation.

Thus, criminal defamation provisions are "disproportionate in that there is a less restrictive means, via civil remedies, to achieve the protection of individual reputations", they said.

When the investigation officer on the case was asked on the stand if anyone from the Cabinet felt offended and told him to investigate, he said "no".

The defence also said the prosecution had never specified which members of Cabinet were defamed, calling this "deficiency" "glaring".

De Costa's lawyer M Ravi urged the court to acquit his client of both charges, citing the defence of good faith. Citing the law, Mr Ravi said it was not defamation to express in good faith "any opinion whatever respecting the conduct of any person touching any discharge of his public functions".

He said there was a rational basis for De Costa's belief that "corruption at the highest echelons" was a true statement, given that "similar statements were made by the Lee siblings with proximity to the said 'high echelons of society' and that no prosecution was brought against them".

Mr Ravi said his client "was not trying to be malicious even if he was being passionate", and that De Costa intended the words "high echelons" to refer to elite members or "the cream of the crop of society", and not to members of the Cabinet.

He asserted that Dr Lee Wei Ling and her brother Lee Hsien Yang had directly accused their sibling Prime Minister Lee Hsien Loong and Cabinet members of corruption.

"If the Lee siblings were not prosecuted, (De Costa) should similarly not be prosecuted," claimed Mr Ravi.

On the unauthorised computer access charge, he argued that Mr Sim had given De Costa consent to access his email account for all purposes, and that the prosecutors had failed to prove the lack of consent.

The judge found that the prosecution had made out all charges against the pair and convicted them accordingly. The TOC website, which was founded in 2006, was taken offline in September this year, after IMDA suspended its class licence for repeatedly failing to comply with its legal obligation to declare all funding sources.

Xu and De Costa will return to court for mitigation and sentencing in December. For criminal defamation, they could be jailed up to two years and fined. For unauthorised computer access, De Costa could be jailed up to two years, fined up to S$5,000, or both.

Source: CNA/ll(ac)

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