Court to hear Daniel de Costa’s constitutional challenge in criminal defamation charge

Mr.M.Ravi attended the Pre-Trial Conference yesterday of our client Daniel de Costa who has been jointly charged with Terry Xu of The Online Citizen (TOC) for criminal defamation. It was alleged that he made certain comments by email which was subsequently published on TOC that would harm the reputation of members of the Cabinet and therefore has committed an offence punishable under Section 500 of the Penal Code.

The Court has given us (the Defence) directions and would like us to address our constitutional point. Our point questions whether the phrase “the reputation of such person” under Section 499 of the Penal Code is to be read as being limited to “natural persons only” having regard to an earlier decision of the Court of Appeal decided in 2017 and that the Cabinet is not a “natural person” by any definition and in accordance with Articles 23 and 24 of the Constitution.

The Court wants the Prosecution to address the following:

a. Whether the publication harms the reputation of the Cabinet.

b. On that question, whether it is the Prosecution’s case that the harm caused to the Cabinet as an entity or that it harms the reputation of individual Cabinet members.

c. If the Cabinet is an entity, the Prosecution to address whether it is possible for an entity, Cabinet, to be a victim of criminal defamation.

d. If it is relating to individual Cabinet members, whether the Prosecution be further specific who in the Cabinet the charge relates to.

The hearing date on the above constitutional challenge has been set for for 27th November 2019 in open court at 9.30am in Court 13( State Courts).

 

* Facebook post by Carlson Law Chambers.

 

Case background

On 12 December 2018, Mr De Costa was charged for criminal defamation alongside TOC Editor Terry Xu for “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 [The Online Citizen] of a letter from Willy Sum…which stated that there was a ‘corruption at the highest echelons’.

Mr De Costa was additionally charged for committing an offence under the Computer Misuse Act of Singapore.

Willy Sum was a pseudonym used by Mr De Costa.

Published on 4 September 2018, the article submitted by Mr De Costa alleged, “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 offending article was taken down under the orders of Infocomm and Media Development Authority on 18 September 2018. IMDA then reported to the Singapore Police Force on 8 October 2018.

On 20 November 2018, the police seized electronic devices from the residence of both Terry and Mr De Costa under court orders. Terry was also subjected to an eight-hour interview with the police on the day itself, while De Costa was interviewed at a later date.

If convicted, they face a maximum sentence of two years imprisonment, a fine or both.

* Courtesy of The Online Citizen.

 

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17 Responses to “Court to hear Daniel de Costa’s constitutional challenge in criminal defamation charge”

  • Highest echelons mean what?:

    This case also depends on what “highest echelons” mean.

    Does “highest echelons” include those uniformed chiefs already charged in court for various corruption?
    Does it include Parliament Speaker or other Members of Parliament who had unethical sexual relations, which is a form of corruption?

    That plural form of echelons is critical.
    And “corruption” is not only about money.

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  • @Highest echelons mean what?

    EXACTLY my sentiments. It could mean the board of directors of ANY stat boards, SPF, SCDF, SAF, SMRT, UOB, OUB, etc.

    Since its plural, it cannot be said to be referring to a single person. Even if the court wants to view it to be referring to one person, then should that person be the PM or the President?

    Whats the definition of “highest”? Is the office of the PM the highest or the office of the President? How about the head of the civil service?

    “Highest echelons” could also mean the richest men in Singapore, need not necessary be cabinet, right? What does “highest” exactly mean?

    Having said that, I am tempted to assume that the accused has already admitted in the police statement that he was referring to the cabinet, so bo bian liao on the above defence.

    BUT THEN, he merely stated “Highest echelons”, not everyone in the cabinet is “high” right? Only some are senior ministers, some are ministers while the rest are state ministers (not high post), so technically, he wasn’t referring to the whole cabinet wat, dio bo? So then WHO was he exactly referring to? Without identifying the victims, how to proceed with a criminal defamation charge?

    Unlike sedition where a race can be defined generally and since “highest echelons” need not be referring to the entire cabinet, then it is the job of the prosecution to identify the victims, which the judge rightly instructed.

    IMHO, a cabinet cannot be construed as an organization like SAF, SCDF or SPF where it can be defamed when someone for example says the SAF or SPF sucks. My understanding is that cabinet ministers are not cabinet, its only when they sit together in a session then can be counted cabinet. Today 10 ministers sit in a session (some busy some MC), so its cabinet, then tomorrow 20 sit, then its also a cabinet. Its not a fixed number, so the supposed victim is WHO or WHOM?

    Its just like accusing a COI to be corrupt but then it can only refer to that particular COI (with its sitting members) and not all convened COI since its composition changes with each new appointments.

    My 2 cents. I stand corrected.

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  • patriot of TUMASIK:

    Do you SUE Heaven – God or Mother Nature when it destroys the earth with earthquake & tsunami…So IF I say the System is F..ked!!! and the Bench in the Court is Corrupt…am I referring to people or individual in the system or the people sitting in the BENCH…it is NOT for the Bench or System to Sue but the People in the System or sitting on the Bench to EXPLAIN why it is NOT what I say it is!!!…no innuendo or insinuation just gut feeling and Discernment leh!!!

    Am I wrong??? that the bench & System through IDIOTS need to sue that they are Right and I am Wrong…Explain with Facts & Transparency and NOT Threats and Bullshit Highfulatin Queen’s English on why the GIC/TH and Jinx salaries CANNOT be Divulged, that the ordinary ah pek and even some educated do not understand.

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  • my 3 cents:

    @techie;

    I don’t know how come others could agree with you? Apparently all of you did not bother to read the penal code;

    “It may amount to defamation to make an imputation concerning a collection of persons as such.” …..

    and cabinet is a collection of persons; The more persons in the collection, the more damages it become;

    I think Mr Ravi should take serious look at the opportunity to answer the direction by the Court to address on constitutional point, not only to weigh on “natural person” in defence; If there is a constitutional point of truth for the goodness of the public, then there is no defamation intended.

    My 3 cents;

    TRE Techie:
    @Highest echelons mean what?

    EXACTLY my sentiments. It could mean the board of directors of ANY stat boards, SPF, SCDF, SAF, SMRT, UOB, OUB, etc.

    My 2 cents. I stand corrected.

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  • @my 3 cents

    That was what I meant exactly. Cabinet is a collection of persons and is not an individual entity by itself like the SPF, SCDF, etc. That collection of persons may wary and is not specific, depending on per cabinet sessions. So it is my take that a cabinet cannot be defamed nor can it be sued for having defamed a 3rd party.

    In my opinion, I feel that there is a marked difference between saying policemen are corrupt than saying the SPF is corrupt. You only need 1 or 2 policemen to be corrupt and it would be fair statement to say policemen are corrupt, to a lay person.

    His statement, again in my opinion, is akin to saying Singaporeans are generally kiasi and kiadu. Can anyone prove that the person saying it is right or wrong? Can he be sued for having defamed “Singaporeans”?

    If I am not wrong, in a defamation case, the perception of the person/s having been defamed matters and if some Singaporeans feels that there were no defamation, then there is no case to answer.

    “Singaporeans” is a collective group of citizens but it is not an entity that can be allowed to sue for defamation, like Chinese, Malays, Indians, Government, etc. Sedition maybe but don’t think it applies to criminal defamation.

    I can’t put it in any clearer terms due to my english standard, but I hope some may understand what I am trying to get at.

    .

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  • 3 cents:

    @TRE Techie;

    In most likeness, if you stand trial and “Davinded” in the dock and under oath, asking for the persons in the Cabinet collection he referred to in the offensive statement;

    I think you would either be 1, 2 ,3,err… out of tongue… or became like “Sam Hui audition” OUT! in court.

    That’s not the way to go or be prepared.

    What you said is already sufficiently covered in the penal code examples of imputation of company of persons, so no need to cite your baseless personal opinion that could misdirect others. So the mistakes are 1) don’t bother to read, 2) think that the penal code is loose or not detailed enough.

    I appreciate if you read and then state your case in defend of what had been written and made into laws and carve your reasoning from there on, then it would be more constructive that way to TRE readers.

    thanks. Please don’t be mistaken, I am against MIWs.

    TRE Techie:
    @my 3 cents

    That was what I meant exactly. Cabinet is a collection of persons and is not an individual entity by itself like the SPF, SCDF, etc. That collection of persons may wary and is not specific, depending on per cabinet sessions. So it is my take that a cabinet cannot be defamed nor can it be sued for having defamed a 3rd party.

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  • Mai Kay Kiang:

    “Generally Kiasi” is Generally also some truth in it, so who Singaporean would bother to spend money to sue you, GENERALLY SPEAKING? You want to cite examples, at least write better one mah?

    Why don’t you try to pen “PAP is the most corrupt”, or “Singapore police force is most corrupt” to prove your point, see what happen to you lah…

    TRE Techie:
    @my 3 cents

    That was what I meant exactly. Cabinet is a collection of persons and is not an individual entity by itself like the SPF, SCDF, etc. That collection of persons may wary and is not specific, depending on per cabinet sessions. So it is my take that a cabinet cannot be defamed nor can it be sued for having defamed a 3rd party.

    In my opinion, I feel that there is a marked difference between saying policemen are corrupt than saying the SPF is corrupt. You only need 1 or 2 policemen to be corrupt and it would be fair statement to say policemen are corrupt, to a lay person.

    His statement, again in my opinion, is akin to saying Singaporeans are generally kiasi and kiadu. Can anyone prove that the person saying it is right or wrong? Can he be sued for having defamed “Singaporeans”?

    If I am not wrong, in a defamation case, the perception of the person/s having been defamed matters and if some Singaporeans feels that there were no defamation, then there is no case to answer.

    “Singaporeans” is a collective group of citizens but it is not an entity that can be allowed to sue for defamation, like Chinese, Malays, Indians, Government, etc. Sedition maybe but don’t think it applies to criminal defamation.

    I can’t put it in any clearer terms due to my english standard, but I hope some may understand what I am trying to get at.

    .

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  • playing around with words:

    The ‘elites’ go by their own dictionary which allow them to dissect & stretch each word’s meaning to their elitist advantage.
    The rest of us have to make do with the normal international version.

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  • @3 cents

    I already qualify that I am a lay person and is looking at the case from a layman’s perspective. I can accept that I am wrong and stands corrected.

    The point I was trying to make all along is simply that IMHO, cabinet is not a legal entity, it therefore cannot sue or be sued.

    Cabinet as far as my understanding is concerned, is the same as Chinese, Malay, Indian, Eurasian. They are collectively a group/class of persons but they cannot sue or be sued (as an entity).

    @Mai Kay Kiang

    I already said: There is a huge world of difference in saying “members of 1MDB are corrupt” and “1MDB is corrupt”. “Members” may refer to 2 and maybe more but not all” while 1MDB collective refers to ALL its members.

    Of course this is only my understanding which may be wrong. Please don’t take my word for it cause I am merely talking cock and singing song on a hot and humid night.

    .

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  • Harder Truths:

    Regardless of whether it is made of an individual or persons or a lot of LGBT – the law is always about protecting certain people.

    Who here believes the court will rule in favour of the defendants? The judgement will be obtuse, incomprehensible with lots of legal jargon and mumbo-jumbo.

    Wait and see. These guys are not paid big money for nothing….

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  • Lucy's Logic:

    Lucy to Charlie, “It means what I say it means.” Meaning without context is pretext.

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  • 3 cents:

    @TRE Techie;

    Just don’t contort the subjects to oblivion;

    Compare;

    [1] 1MDB is corrupt [[your example]

    To:

    [2] members of 1MDB are corrupt [your example] And ‘corruption at the highest echelons’

    To wits, the perception of the statement and its purpose. If it is true with proofs, then there is no defamation in certainty.

    TRE Techie:
    @3 cents

    I already qualify that I am a lay person and is looking at the case from a layman’s perspective. I can accept that I am wrong and stands corrected.

    The point I was trying to make all along is simply that IMHO, cabinet is not a legal entity, it therefore cannot sue or be sued.

    Cabinet as far as my understanding is concerned, is the same as Chinese, Malay, Indian, Eurasian. They are collectively a group/class of persons but they cannot sue or be sued.

    @Mai Kay Kiang

    I already said: There is a huge world of difference in saying “members of 1MDB are corrupt” and “1MDB is corrupt”. “Members” may refer to 2 and maybe more but not all” while 1MDB collective refers to ALL its members.

    Of course this is only my understanding which may be wrong. Please don’t take my word for it cause I am merely talking cock and singing song on a hot and humid night.

    .

    Tech: Alright, lets stick to the basic and original “corruption at the highest echelons”. If you ask me, I would ask you “highest echelons” of what and who were the accused referring to? Note “echelons” is in plural and cabinet is singular, so my question what other “highest echelons”?

    Technically, the “highest echelons” in Singapore is the office of the President or it can be the office of the Prime Minister, but then it can also mean Parliament or even head of Civil service and the lists goes on.

    Without privy to the original statements and charge sheet, its just a general discussion going nowhere.

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  • 3 cents:

    @TRE Techie;

    IMHO;

    Cabinet is singular, Cabinet is not a “natural person”.
    Echelons is plural, Echelons referred to “natural persons”. Company, collection of persons are covered in the Penal Code as exemplified therein.

    That’s why I said, don’t weigh too much on just this argument ["natural person"] alone. Dive further. The judge already directed clearly.

    If you do not know what is “cabinet”? Click the link below;
    https://www.pmo.gov.sg/The-Cabinet

    So who is the “highest echelons” in the cabinet?

    To wits, in this situation means [not your wits obviously], those in the court making the judgement, their perception of the statement and its intended purpose.

    Now;

    Where did the word “Cabinet” comes from? It’s a disaster. If you’re in the dock and under oath, you will likely shits your pants, similarly or if not, like the Michael Hui singing audition? [comedy movie]

    Do you know the “Ancient Art of Salted fish Resurrection from the dead?”. Can’t tell you here!.

    Must be very weary of sub-judice contempt of the court.

    But I trust, a learned person so witty to pen what he did, he must have his ways and know much more than me do.

    3 cents:
    @TRE Techie;

    Tech: Alright, lets stick to the basic and original “corruption at the highest echelons”. If you ask me, I would ask you “highest echelons” of what and who were the accused referring to? Note “echelons” is in plural and cabinet is singular, so my question what other “highest echelons”?

    Technically, the “highest echelons” in Singapore is the office of the President or it can be the office of the Prime Minister, but then it can also mean Parliament or even head of Civil service and the lists goes on.

    Without privy to the original statements and charge sheet, its just a general discussion going nowhere.

    Tech: At least I was right on the cabinet being unable to sue or be sued. lol. Thank you for the info, it was indeed a learning experience for me.

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  • INSIDE 200m is not within 200m:

    pap set up a law on INSIDE 200m.

    when caught, especially when clan elder goh cock tong jiak liao bee tan clown lee were caught, the beholden started to twist and turn. ending up with INSIDE 200m is not within 200m.

    are these humans honest?

    how do they sleep at night, knowing they have cheated the law which they have set up?

    what happens if the three caught that day were not pap clan elders goh cock tong jiak liao bee tan clown lee but esteemed Ms Sylvia Loh Mr Lim Tean Mr Leon Perara?

    sauce for goose is not sauce for gander. a nation governed by such cheaters cannot stand. sure to kaput.

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  • TomatoK:

    Just gather all the wrong deeds done

    And tag a reference number to it and present

    It to judge.court deal only with evidence.

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  • MiloIndianCumMalay:

    https://www.channelnewsasia.com/news/singapore/govt-to-tighten-rules-on-its-tender-processes-8377388

    any public exercise with only 1 bidder or 1 candidate is invalidated. It has been the practice long long time ago.

    At the void deck, one indian, one malay, milo besides, playing chess;
    Uncle said;
    die, at least die a martyr,
    with so many admiration, maybe martyr died painless or is one day saved?

    the chessboard

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  • rukidding:

    When he sues you,….you are likely to “soo” ( lost)

    No need “brains”….it is “written all over”.

    Somehow,…this Libra balancing scale “always tend to tip” the other side.

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