A Landmark Verdict: Terry Xu’s prior served sentence fulfills his fine obligation

SINGAPORE: In a pivotal verdict issued at a Magistrate Appeal on Friday (4 Aug), Justice Aedit Abdullah ruled that the three weeks’ imprisonment sentence Terry Xu had already served was sufficient to cover the in-default imprisonment of two weeks.

This decision pertained to the fine imposed on the editor of The Online Citizen (TOC) for his criminal defamation charge, which stemmed from his approval of a letter for publication in September 2018 that alleged “corruption at the highest echelons”.

Terry Xu Yuanchen, 40, the central figure in the case, was initially given a three-week jail term for criminal defamation of members of the Singapore Cabinet. Xu had already served this sentence in April 2022.

In an appeal against the sentence, Xu successfully petitioned for his jail term to be replaced with an S$8,000 fine. Daniel De Costa Augustin, 39, the author of the controversial letter, faced a similar predicament. Initially sentenced to three weeks in jail, his term was also commuted to a monetary fine, set at S$10,000.

In his judgment delivered on the appeal on 4 May, Justice Abdullah emphasized that the original sentence of three weeks’ imprisonment for defamation was “manifestly excessive”.

He distinguished between direct accusations of corruption and allegations that Cabinet members had allowed corruption to infiltrate the establishment through their incompetence – the latter being the crux of Xu’s charge. According to Justice Abdullah, this distinction should be reflected in the sentencing.

Following the appeal verdict, Xu’s defence lawyers from Remy Choo Chambers (RCC) LLC argued that Xu’s three-week sentence should be deemed sufficient to cover the S$8,000 fine, thereby treating the served time as the in-default imprisonment sentence.

Conversely, the prosecution team, led by Second Chief Prosecutor Mohamed Faizal Mohamed Abdul Kadir, contended that Xu’s previous incarceration should not be used to satisfy the in-default sentence. They argued this was legally untenable, recommending that Xu either pay the imposed fine or serve the two-week in-default sentence.

At the hearing on Friday, Carol Yuen, Senior Associate at RCC, argued in response to the prosecution’s submissions that there is no prohibition under the law that restricts the Court from backdating in-default imprisonment sentences.

She noted that while the law provides that the Court may direct that the offender must suffer in-default imprisonment in default of payment of the fine, it does not specify that the offender must suffer the in-default imprisonment only after the imposition of the fine.

Yuen also argued that the Courts have allowed offenders to elect between paying the fine and serving the in-default sentence at sentencing hearings, without seeking to have offenders try to pay the fine first through other forms of enforcement such as by seizing property.

She said that this demonstrates that an in-default sentence is a punishment and serves the ends of justice, and the in-default sentence need not be served only after the fine has been imposed.

In his decision, Justice Abdullah noted the potential public surprise if Xu’s prior three-week imprisonment did not count towards the imposed fine. This would leave him liable to either pay S$8,000 or face additional imprisonment, a scenario which, he observed, could result in a more severe punishment than if Xu had lost the appeal.

Acknowledging the prosecution’s argument about the absence of a mechanism for backdating the in-default sentence under the Criminal Procedure Code, Justice Abdullah maintained that the Code also allows judges to adopt procedures as justice may require, provided these procedures do not contradict the law.

In his written brief of his judgment, Justice Abdullah wrote, “It suffices for me to note that the default sentence is not just a mechanism to encourage payment. It is punishment, as anyone who has served a default sentence will attest. You are in prison. You are deprived of your liberty. You are not free.”

The judge disagreed with the prosecution’s position that “there is in the end no gap in the law” if Xu is made to pay a fine on top of the sentence that he served.

Justice Abdullah said, “There is a real, substantial gap. There is unfairness. And the justice of the case requires that I adopt a procedure as regards the determination of the default sentence for the fine that takes into account the previously served imprisonment.

“It is not an answer that the appellant chose at the time to serve the sentence imposed below: there could be various reasons for choosing to do so, but which should still not lead to an injustice.”

He concluded that justice necessitated the recognition of Xu’s served sentence as meeting the in-default imprisonment sentence.