Xu Yuanchen v Public Prosecutor: Criminal Defamation & Computer Misuse Act
Xu Yuanchen and Daniel De Costa Augustin appealed against their convictions. Xu Yuanchen, director of The Online Citizen (TOC), was convicted of criminal defamation for publishing an article containing the phrase "corruption at the highest echelons." Daniel De Costa Augustin, the author, was similarly convicted, and also for unauthorized access under the Computer Misuse Act (CMA) for sending the email from another person's account. The High Court upheld the convictions but reduced the sentences for criminal defamation to fines, while dismissing the appeals against conviction and the CMA sentence.
1. Case Overview
1.1 Court
General Division of the High Court1.2 Outcome
Appeals against conviction with respect to all charges and the second appellant’s appeal against sentence for the Computer Misuse Act charge are dismissed. The appeals against sentence for the criminal defamation charges are allowed, and the sentences of imprisonment imposed are set aside and substituted by the fines.
1.3 Case Type
Criminal
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court upholds conviction for criminal defamation and computer misuse, concerning an article published on The Online Citizen website.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Respondent | Government Agency | Appeal against conviction with respect to all charges dismissed | Won | Niranjan Ranjakunalan of Attorney-General’s Chambers Mohamed Faizal SC of Attorney-General’s Chambers Andre Chong Wei Min of Attorney-General’s Chambers |
| Xu Yuanchen | Appellant | Individual | Appeal against sentence for criminal defamation charges allowed | Partial | |
| Daniel De Costa Augustin | Appellant | Individual | Appeal against conviction with respect to all charges dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Aedit Abdullah | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Niranjan Ranjakunalan | Attorney-General’s Chambers |
| Mohamed Faizal SC | Attorney-General’s Chambers |
| Andre Chong Wei Min | Attorney-General’s Chambers |
| Choo Zheng Xi | Remy Choo Chambers LLC |
| Yuen Ai Zhen Carol | Remy Choo Chambers LLC |
| Chung Ting Fai | Chung Ting Fai & Co |
4. Facts
- Daniel De Costa Augustin sent an email containing the phrase "corruption at the highest echelons" from Mr. Sim's email account to The Online Citizen.
- Xu Yuanchen, director of TOC, approved the publication of the email on the TOC website.
- The email was published as a letter titled “The Take Away From Seah Kian Ping’s Facebook Post” under the name “Willy Sum”.
- The Info-communications Media Development Authority directed Xu Yuanchen to remove the article, which he complied with.
- Mr. Sim had previously allowed De Costa Augustin to use his email account for specific purposes related to his bankruptcy and other matters.
- Mr. Sim testified that he did not authorize De Costa Augustin to use his email account to send the email in question.
- The phrase "corruption at the highest echelons" was interpreted as an imputation that the Cabinet members were responsible for the emergence of corruption due to their incompetence.
5. Formal Citations
- Xu Yuanchen v Public Prosecutor and another appeal, Magistrate’s Appeals Nos 9073 of 2022 and 9078 of 2022, [2023] SGHC 123
6. Timeline
| Date | Event |
|---|---|
| Daniel De Costa Augustin sent an email titled “PAP MP apologises to SDP” from the email account “willysim71@yahoo.com.sg” to “theonlinecitizen@gmail.com” | |
| Xu Yuanchen approved the publication of the Email on the TOC website as a letter from “Willy Sum” titled “The Take Away From Seah Kian Ping’s Facebook Post” | |
| Info-communications Media Development Authority issued a direction to Xu Yuanchen to remove the Article from the TOC website | |
| Xu Yuanchen complied with the direction and the Article was taken down | |
| Hearing date | |
| Judgment reserved |
7. Legal Issues
- Criminal Defamation
- Outcome: The court upheld the conviction for criminal defamation, finding that the appellants knew the imputation would harm the reputation of the Cabinet members, but reduced the sentence to a fine.
- Category: Substantive
- Sub-Issues:
- Interpretation of defamatory words
- Knowledge of harm to reputation
- Good faith defense
- Unauthorised Access to Computer Material
- Outcome: The court upheld the conviction for unauthorized access, finding that the consent granted to the second appellant did not extend to the usage of the Yahoo Account to send the Email.
- Category: Substantive
- Sub-Issues:
- Consent to access
- Scope of authorisation
- Constitutionality of Criminal Defamation Provisions
- Outcome: The court upheld the constitutionality of the criminal defamation provisions, finding that they were valid restrictions on the right to freedom of speech and expression under Art 14(2)(a).
- Category: Constitutional
- Sub-Issues:
- Freedom of speech
- Restrictions on freedom of speech
- Proportionality analysis
8. Remedies Sought
- Appeal against Conviction
- Appeal against Sentence
9. Cause of Actions
- Criminal Defamation
- Unauthorised Access to Computer Material
10. Practice Areas
- Criminal Law
- Defamation
- Constitutional Law
11. Industries
- Media
- Technology
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Public Prosecutor v Daniel De Costa Augustin & Xu Yuanchen | District Court | Yes | [2022] SGMC 22 | Singapore | Cited as the judgment under appeal, where the appellants were initially convicted. |
| Daniel De Costa Augustin v Public Prosecutor | High Court | Yes | [2020] 5 SLR 629 | Singapore | Cited for the principle that the second appellant had not proven a prima facie breach of Art 12(1) to displace the presumption of constitutionality in respect of the decision of the Public Prosecutor. |
| Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal | Court of Appeal | Yes | [2010] 1 SLR 52 | Singapore | Cited for the principle that for civil defamation, where the offending words refer to a class or body of persons as opposed to a specific individual, a successful claim may still be made out if the ordinary reasonable person can conclude that the statement is capable of being interpreted as referring to the individual. |
| Microsoft Corp and others v SM Summit Holdings Ltd and another and other appeals | N/A | Yes | [1999] 3 SLR(R) 465 | Singapore | Cited for the principles for determining the natural and ordinary meaning of allegedly defamatory words. |
| Derbyshire County Council v Times Newspapers Ltd | N/A | Yes | [1993] 2 WLR 449 | England | Cited for the principle that a government body cannot sue for defamation. |
| Harbans Singh Sidhu v Public Prosecutor | N/A | Yes | [1971-1973] SLR(R) 610 | Singapore | Cited for the factors for ascertaining whether an accused person acted in good faith under the Exceptions to s 499 of the Penal Code. |
| Chee Siok Chin and others v Minister for Home Affairs and another | N/A | Yes | [2006] 1 SLR(R) 582 | Singapore | Cited for the established position in Singapore that proportionality analysis has never been part of our constitutional law. |
| Wham Kwok Han Jolovan v Public Prosecutor | N/A | Yes | [2021] 1 SLR 476 | Singapore | Cited for the principle that for the purposes of evaluating whether a law was considered by Parliament to be “necessary or expedient”, it is not necessary for Parliament to have expressly referred to the restriction of the relevant constitutional right. |
| Tan Seet Eng v Attorney-General and another matter | N/A | Yes | [2016] 1 SLR 779 | Singapore | Cited for the principle that courts cannot create or amend laws in a manner which permits recourse to extra-legal policy factors and considerations. |
| Lim Meng Suang and another v Attorney-General and another appeal and another matter | N/A | Yes | [2015] 1 SLR 26 | Singapore | Cited for the principle that courts cannot create or amend laws in a manner which permits recourse to extra-legal policy factors and considerations. |
| UKM v Attorney-General | N/A | Yes | [2019] 3 SLR 874 | Singapore | Cited for the principle that as unelected officials, judges lack the democratic mandate to pronounce upon matters requiring the determination and assessment of moral, political, social, and cultural mores. |
| Ong Ah Chuan v Public Prosecutor | N/A | Yes | [1981] 1 AC 648 | Singapore | Cited for deference to the Legislature in the evaluation of the substantive merits of laws. |
| Yong Vui Kong v Public Prosecutor and another matter | N/A | Yes | [2010] 3 SLR 489 | Singapore | Cited for deference to the Legislature in the evaluation of the substantive merits of laws. |
| The Online Citizen Pte Ltd v Attorney-General and another appeal and other matters | N/A | Yes | [2021] 2 SLR 1358 | Singapore | Cited for the applicable approach under Art 14 to determine the validity of a restriction on the right to freedom of speech and expression. |
| Attorney-General v Ting Choon Meng and another appeal | N/A | Yes | [2017] 1 SLR 373 | Singapore | Cited for the question of whether the balance between the right to free speech and the protection of public order has been struck in a “necessary or expedient” manner. |
| Public Prosecutor v GCK | N/A | Yes | [2020] 1 SLR 486 | Singapore | Cited for the “unusually convincing” standard which applies to the uncorroborated evidence of a witness where such evidence forms the sole basis for conviction. |
| Lim Siong Khee v Public Prosecutor | N/A | Yes | [2001] 1 SLR(R) 631 | Singapore | Cited for the principle that the authorisation must relate to the kind of access in question to the program or data. |
| Sulochana d/o Tambiah Dirumala Sakkrawarthi v Rajalakshmi Ramoo | N/A | Yes | [2004] 1 SLR(R) 214 | Singapore | Cited for the non-exhaustive list of factors that would determine the seriousness of an offence under s 500. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) ss 499 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) ss 500 | Singapore |
| Computer Misuse Act (Cap 50A, 2007 Rev Ed) s 3(1) | Singapore |
| Criminal Procedure Code (2020 Rev Ed) s 124(1) | Singapore |
| Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 12(1) | Singapore |
| Constitution of the Republic of Singapore Art 14 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Criminal Defamation
- Computer Misuse Act
- The Online Citizen
- Defamatory Imputation
- Unauthorised Access
- Freedom of Speech
- Cabinet
- Good Faith
- Public Order
- Proportionality Analysis
15.2 Keywords
- Criminal Defamation
- Computer Misuse Act
- Freedom of Speech
- Singapore
- TOC
- Online Citizen
- Cabinet
- Corruption
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Defamation | 90 |
| Criminal Law | 80 |
| Computer Misuse Act | 75 |
| Statutory offences | 70 |
| Freedom of speech | 65 |
| Constitutional Law | 60 |
16. Subjects
- Criminal Law
- Defamation
- Computer Misuse
- Constitutional Law
- Freedom of Speech