Court of Appeal dismisses TOC editor’s applications for criminal reference in defamation case

On Monday (20 May), the Singapore Court of Appeal issued its judgment in the case of Xu Yuanchen v Public Prosecutor, reinforcing legal standards for criminal defamation and confirming the constitutional compliance of such laws under Singapore’s governance.

In its judgment, the Court dismissed Xu’s application for a criminal reference, emphasizing the stringent conditions under which legal questions can be reconsidered at this appellate level.

Terry Xu Yuanchen, the editor and director of The Online Citizen, was initially sentenced to three weeks’ jail for an article published in 2018, which implied corruption at the “highest echelons” of the government, thereby tarnishing the Cabinet’s reputation.

Following an appeal last May, the sentence was reduced to an S$8,000 fine, with the presiding judge, Justice Aedit Abdullah, deeming the original sentence “manifestly excessive.” He differentiated between direct accusations of corruption against Cabinet members and allegations of allowing corruption due to their incompetence.

In his challenge, Xu queried whether an appellate court is permitted to convict a defendant based on a defamatory meaning not specifically alleged by the prosecution, without giving the accused an opportunity to defend against this new interpretation.

The contentious article referred to the “present PAP leadership,” which both the trial and appeal judges concluded pertained directly to the Cabinet.

The Court said that it found no prejudice against the appellant, Xu Yuanchen, regarding the interpretation of the defamatory article.

The article’s analysis included who the “present PAP leadership” referred to and the allegations of “corruption at the highest echelons.” Xu had the opportunity to argue that this phrase referred to the PAP’s political leadership rather than specifically the Cabinet, but this argument was rejected.

Furthermore, the Court noted that Xu himself described the corruption mentioned as a generalized accusation reflecting the failures of the PAP’s leadership, aligning with the interpretation ultimately adopted by the appeal judge.

Thus, while Xu wasn’t called to defend against this specific interpretation, it was a composite of the prosecution’s view, which he addressed, and his own comments on the leadership’s failings.

The Court highlighted this during the oral hearing, contrasting it with cases involving substantial amendments to charges, to underline that Xu had ample opportunity to contest the interpretations used in his conviction.

Challenging the constitutionality of Singapore’s criminal defamation laws, Xu argued through his lawyers at RCL Chambers Law Corporation that these pre-independence laws, not legislated by the current Parliament, were improperly imposed as per Article 14(2)(a) of the Constitution.

The Court clarified this, stating: “Parliament may by law impose on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence.”

The judgment further elaborated on the phrase “necessary or expedient” in Article 14(2)(a), explaining that this requirement does not apply to laws against defamation, which fall under the second category of restrictions that do not require the test of necessity and expediency.

The Court affirmed, “While the first category of restrictions must satisfy the test of necessity and expediency in the interest of the various matters specified therein, the second category of restrictions is not required to satisfy any such test. Thus, Parliament is empowered to make laws to impose on the right of free speech restriction designed to provide against defamation.”

The Court also emphasized the rarity and exceptional nature required for applications of criminal reference, stating: “To liberally construe s 397 [of the Criminal Procedure Code 2010 (2020 Rev Ed), the provision relating to applications for criminal references] so as to more freely allow a reference to the Court of Appeal would seriously undermine the system of one-tier appeal. The interests of finality would strongly militate against the grant of such a reference save in very limited circumstances.”

Reflecting on broader legal principles, the judgment quoted, “Finality is also a function of justice. It would be impossible to have a functioning legal system if all legal decisions were open to constant and unceasing challenge, like so many tentative commas appended to the end of an unending sentence.”