审讯的收获

TAKEAWAYS FROM TRIALS
by Teo Soh Lung

At the trial of Mr Terry Xu, Editor in Chief of The Online Citizen and Mr Daniel De Costa for criminal defamation under section 499 of the Penal Code, it was revealed that Infocomm Media Development Authority (IMDA) had issued a letter to Mr Terry Xu on 18 September 2018 instructing him to remove the published letter dated 4 September 2018. The said letter which was written by Mr De Costa was alleged to have defamed members of the cabinet of Singapore. Mr Terry Xu removed the letter within the day.

The removal of the letter however, did not close the matter. Both Mr Terry Xu and Mr De Costa were subsequently summoned to the police station, interrogated, had their mobile phones, laptop, desktop and storage devices seized from their homes. They were then charged and the trial has gone on for five days. Parties will now wait for the notes of evidence to prepare their written submissions and return to court on 1 November.

IMDA’s request for the removal of materials which it deems as “prohibited material” was sent pursuant to the Internet Code of Practice, 1997. The Code was issued pursuant to the Broadcasting Act. Clause 4(1) defines “prohibited material” as “material that is objectionable on the grounds of public interest, public morality, public order, public security, national harmony, or is otherwise prohibited by applicable Singapore laws.”

Under the Broadcasting Act, IMDA “has the power to impose sanctions, including fines, on licensees who contravene this Code of Practice.” See clause 1(2) of the Code.

Proceeding to charge a person for criminal defamation after that person has removed the alleged offending post is the first of its kind in Singapore. In recent times, two persons were sued for civil defamation after the removal of their facebook and blog posts. They were Roy Ngerng and Leong Sze Hian. PM Lee Hsien Loong was the plaintiff in both these suits. He was awarded colossal damages and costs which were subsequently paid for through crowd funding from the public.

Criminal defamation under section 499 of the Penal Code is a non-seizable offence. The electronic devices were therefore seized with the authority of a warrant and would be in the custody of the police, unless they are already returned to Mr Terry Xu and Mr De Costa by now.

In the course of the five-day trial, the prosecution did not produce to the court any of the seized electronic devices.

The difference between civil defamation and criminal defamation is that the former does not involve the police and electronic devices cannot be seized by the plaintiff while for the latter, these electronic devices can be seized with the authority of a warrant.

Under section 500 of the Penal Code, criminal defamation carries a punishment of imprisonment for a term which may extend to 2 years, or with fine, or with both.

In 1972, lawyer Harbans Singh, the general secretary of the United People’s Front was found by the court to have criminally defamed Lee Kuan Yew at an election rally and jailed for six months. See https://www.thestar.com.my/news/regional/2004/12/06/veteran-singaporean-opposition-politician-dies-of-pneumonia?fbclid=IwAR3UC-7fJFZzz6B78aMp0lVFgNQBV2MQzLjFoMqD98_O29rvgTyw9lOAR-U

So be careful what you write and post!