SINGAPORE – A man accused of criminal defamation by alleging there was corruption in the Cabinet, in an article for The Online Citizen (TOC), has failed in a new bid to have a question of law referred to the High Court.

In delivering reasons for his decision to reject Daniel De Costa Augustin’s application, District Judge Christopher Tan said on Monday (Jan 20) that the 36-year-old did not fulfil a two-step process required to have a case referred to the High Court in this way.

The first step, said District Judge Tan, refers to whether a question of law arises in the given case that relates to the interpretation or effect of a constitutional provision.

If the first step is satisfied, the second step is to ascertain if it is a proper case to be referred to the High Court.

The question which De Costa’s defence lawyer, Mr M Ravi, sought to refer to the High Court was whether the prosecution of his client 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”.

On Dec 13, 2018, De Costa was charged alongside TOC’s 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 that alleged corruption in Singapore’s 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.

RIGHT TO EQUALITY BEFORE THE LAW

During a hearing that lasted more than three hours on Monday, Mr Ravi, who is with Carson Law Chambers, argued that by choosing to prosecute his client and Xu, the Attorney-General 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 in a lengthy joint statement on June 14, 2017 that their brother, PM Lee, had abused his position to challenge the late Mr Lee Kuan Yew’s court-proven will 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,” said Mr Ravi.

The lawyer 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.

In delivering his decision, District Judge Tan said that if the question is asking whether a harsher prosecutorial treatment of an offender, as compared to another person with a similar or higher culpability, infringes Article 12(1), then it could “conceivably be a question” as to the effect of a constitutional provision.

“If so, it could conceivably satisfy the first step of the test,” said the judge. “I will give the defence that.”

However, he added that in order for De Costa’s case to merit referral to the High Court, it still had to pass the second step of the approach.

“There must be new and difficult legal issues involving the Constitution, which have not been previously dealt with by the superior courts,” said District Judge Tan. “In other words, the question of law needs to have an element of novelty.”

He ruled that as the question did not contain this element of novelty, De Costa had failed to satisfy the second step of the two-step process.

‘ULTERIOR MOTIVES’

In their submissions opposing the application, the prosecution, led by Senior Counsel Mohamed Faizal Mohamed Abdul Kadir, stated that De Costa’s application follows on the heels of the dismissal of a previous attempt to refer a purported question of law to the High Court.

The prosecutors, who also comprise Deputy Public Prosecutors Ho Lian-Yi and Sheryl Yeo, wrote that the latest application is the third constitutional question of law that De Costa has sought to place before the High Court.

In November, Mr Ravi raised a question of law regarding whether the Cabinet should be considered a “person” with a reputation to be protected under the law.

“Against this backdrop, it is impossible not to conclude that this application is motivated by ulterior motives,” said the prosecutors. “De Costa should not be permitted to abuse court processes to delay and frustrate proceedings any further.”

Earlier in the day, District Judge Tan had also dismissed a separate application by Mr Ravi for the disclosure of De Costa's long statements to the police, as the trial has not started and the statements might still be used in the hearings.

At the end of the hearing on Monday, Mr Ravi informed the court that he will be taking the challenge to the High Court and will file the application by next week.

All parties will return to the State Courts for a pre-trial conference on Feb 17.