Xu Yuanchen v Public Prosecutor: Criminal Reference, Defamation, and Freedom of Expression

The Court of Appeal of Singapore, comprising Sundaresh Menon CJ, Tay Yong Kwang JCA, and Andrew Phang Boon Leong SJ, dismissed Xu Yuanchen's application for a criminal reference on 20 May 2024. Xu Yuanchen, director of The Online Citizen Pte Ltd, sought to refer five questions of law regarding his conviction for criminal defamation. The court found that none of the questions met the criteria for a criminal reference, particularly failing to be questions of law of public interest.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Application dismissed

1.3 Case Type

Criminal

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

The Court of Appeal dismissed Xu Yuanchen's application for criminal reference, addressing questions of law regarding criminal defamation and constitutional rights.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Public ProsecutorRespondentGovernment AgencyApplication DismissedWon
Niranjan Ranjakunalan of Attorney-General’s Chambers
Norine Tan of Attorney-General’s Chambers
Mohamed Faizal of Attorney-General’s Chambers
Xu YuanchenApplicantIndividualApplication DismissedLost

3. Judges

Judge NameTitleDelivered Judgment
Sundaresh MenonChief JusticeNo
Tay Yong KwangJustice of the Court of AppealNo
Andrew Phang Boon LeongSenior JudgeYes

4. Counsels

Counsel NameOrganization
Niranjan RanjakunalanAttorney-General’s Chambers
Norine TanAttorney-General’s Chambers
Mohamed FaizalAttorney-General’s Chambers
Choo Zheng XiRCL Chambers Law Corporation

4. Facts

  1. The applicant is the director of The Online Citizen Pte Ltd.
  2. The applicant approved the publication of an article on the TOC website.
  3. The article was a letter purportedly authored by one “Willy Sum”.
  4. The article contained the statement that there was ‘corruption at the highest echelons’.
  5. The applicant was charged with defaming members of the Cabinet of Singapore.
  6. The appeal judge adopted a different interpretation of the article than the trial judge.
  7. The applicant argued that the criminal defamation provisions were unconstitutional.

5. Formal Citations

  1. Xu Yuanchen v Public Prosecutor, Criminal Motion No 28 of 2023, [2024] SGCA 17
  2. Xu Yuanchen v Public Prosecutor and another appeal, , [2023] 5 SLR 1210
  3. Public Prosecutor v Daniel De Costa Augustin and another, , [2022] SGMC 22

6. Timeline

DateEvent
Article published on TOC website
Notice of Motion filed by applicant
Court hearing
Grounds of decision delivered

7. Legal Issues

  1. Criminal Defamation
    • Outcome: The court held that the question of whether the applicant's rights had been compromised was a question of fact.
    • Category: Substantive
    • Sub-Issues:
      • Defamatory meaning
      • Breach of natural justice
  2. Constitutionality of Criminal Defamation Provisions
    • Outcome: The court held that the phrase 'necessary or expedient' in Article 14(2)(a) does not apply to laws providing against defamation.
    • Category: Constitutional
    • Sub-Issues:
      • Article 14(1)(a) derogation
      • Article 14(2)(a) application
      • Necessity and expediency
      • Proportionality analysis

8. Remedies Sought

  1. Criminal Reference

9. Cause of Actions

  • Criminal Defamation

10. Practice Areas

  • Criminal Appeals
  • Constitutional Law

11. Industries

  • Media
  • Publishing

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matterCourt of AppealYes[2013] 2 SLR 141SingaporeCited for the principle that criminal references should not undermine the one-tier appeal system.
Kho Jabing v Public ProsecutorCourt of AppealYes[2016] 3 SLR 135SingaporeCited for the importance of finality in legal decisions.
Huang Liping v Public ProsecutorCourt of AppealYes[2016] 4 SLR 716SingaporeCited as an example where adverse costs orders were imposed on applicants for abuse of process.
Ong Boon Kheng v Public ProsecutorSingapore High CourtYes[2008] SGHC 199SingaporeCited for the observation that questions of fact should not be disguised as questions of law.
Public Prosecutor v Teo Chu HaCourt of AppealYes[2014] 4 SLR 600SingaporeCited for the principle that a question of law must have sufficient generality and normative force.
Chew Eng Han v Public ProsecutorCourt of AppealYes[2017] 2 SLR 1130SingaporeCited as an example where the law was not unsettled as argued by the applicant.
Xu Yuanchen v Public Prosecutor and another appealUnknownYes[2023] 5 SLR 1210SingaporeReference to the judgment under appeal.
Public Prosecutor v Daniel De Costa Augustin and anotherSingapore Magistrate CourtYes[2022] SGMC 22SingaporeReference to the trial judge's interpretation of the article.
Wham Kwok Han Jolovan v Public ProsecutorCourt of AppealYes[2021] 1 SLR 476SingaporeCited for the three-step framework for evaluating restrictions of the right to freedom of speech and expression.
Public Prosecutor v Lam Leng Hung and othersCourt of AppealYes[2018] 1 SLR 659SingaporeCited for the conditions that must be established before leave can be granted pursuant to s 397(1) of the CPC.
Public Prosecutor v GCK and another matterCourt of AppealYes[2020] 1 SLR 486SingaporeCited for the conditions that must be established before leave can be granted pursuant to s 397(1) of the CPC.
Phang Wah v Public Prosecutor and another matterCourt of AppealYes[2012] SGCA 60SingaporeCited to contrast a question of law with a question of fact.
Public Prosecutor v Takaaki Masui and another and other mattersCourt of AppealYes[2022] 1 SLR 1033SingaporeCited for the principle that a question of law is not of public interest if it can be readily resolved by applying established legal principles.
James Raj s/o Arokiasamy v Public ProsecutorCourt of AppealYes[2014] 3 SLR 750SingaporeCited for the principle that a question of law is not of public interest if it can be readily resolved by applying established legal principles.
Mah Kiat Seng v Public ProsecutorCourt of AppealYes[2011] 3 SLR 859SingaporeCited for the court's discretion to refuse leave even where conditions are satisfied.
Lee Siew Boon Winston v Public ProsecutorCourt of AppealYes[2015] SGCA 67SingaporeCited for the court's discretion to refuse leave even where conditions are satisfied.
Review Publishing Co Ltd and another v Lee Hsien Loong and another appealCourt of AppealYes[2010] 1 SLR 52SingaporeCharacterized the predecessor provision to Article 162 as not merely an “adjustment” provision but also a “law-enacting provision”.
Tan Eng Hong v Attorney-GeneralCourt of AppealYes[2012] 4 SLR 476SingaporeTook the view that Article 162 “only directs that all laws be read in conformity with the Constitution as far as this is possible”.
Jeyaretnam Joshua Benjamin v Lee Kuan YewCourt of AppealYes[1992] 1 SLR(R) 791SingaporeProvided for two categories of restrictions under Article 14(2)(a) and held that only the first category was required to satisfy the test of necessity and expediency.
Attorney-General v Wham Kwok Han Jolovan and another matterHigh CourtYes[2020] 3 SLR 446SingaporeRelied on to argue that the phrase “necessary or expedient” in Article 14(2)(a) did not apply to laws providing against defamation.
The Online Citizen Pte Ltd v Attorney-General and another appeal and other mattersCourt of AppealYes[2021] 2 SLR 1358SingaporeOnly decided that a proportionality test should not be incorporated into the statutory framework of the Protection from Online Falsehoods and Manipulation Act 2019.
Chee Siok Chin and others v Minister for Home Affairs and anotherHigh CourtYes[2006] 1 SLR(R) 582SingaporeCommented that the notion of proportionality was not part of the constitutional law jurisprudence of Singapore, but was strictly obiter dicta.
A Ragunathan v Pendakwa RayaMalaysian Federal CourtYes[1982] 1 MLJ 139MalaysiaApproved of the test for determining whether a question of law raised in the course of the appeal is of public interest.
Wee Teong Boo v Singapore Medical Council (Attorney-General, intervener)General Division of the High CourtYes[2023] 3 SLR 705SingaporeObserved that what would suffice to comport with a party’s right to a fair hearing turns on the particular circumstances of the case.
China Machine New Energy Corp v Jaguar Energy Guatemala LLC and anotherCourt of AppealYes[2020] 1 SLR 695SingaporeHeld that the proper approach a court should take is to ask itself if what the tribunal did (or decided not to do) falls within the range of what a reasonable and fair-minded tribunal in those circumstances might have done.
Triulzi Cesare SRL v Xinyi Group (Glass) Co LtdUnknownYes[2015] 1 SLR 114SingaporeCited in China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another.
Goh Chin Soon v Public ProsecutorCourt of AppealYes[2021] 2 SLR 308SingaporeEvery litigant has a general right to bring all evidence that is relevant to his or her case to the attention of the court.
Jeyaretnam Joshua Benjamin v Lee Kuan YewCourt of AppealYes[1990] 1 SLR(R) 337SingaporeArticle 14 has been held to apply in the decision of this court in Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1990] 1 SLR(R) 337 at [5].
PT Bakrie Investindo v Global Distressed Alpha Fund 1 Ltd PartnershipCourt of AppealYes[2013] 4 SLR 1116SingaporeOne must avoid the approach of Humpty Dumpty in Lewis Carroll’s Through the Looking-Glass.
Au Wai Pang v Attorney-GeneralCourt of AppealYes[2016] 1 SLR 992SingaporeThe Singapore courts should depart from the existing Singapore law and adopt the approach in the Privy Council decision of Dhooharika v Director of Public Prosecutions (Commonwealth Lawyers’ Association intervening) [2014] 3 WLR 1081 (“Dhooharika”) instead.
Dhooharika v Director of Public Prosecutions (Commonwealth Lawyers’ Association intervening)Privy CouncilYes[2014] 3 WLR 1081UnknownThe Singapore courts should depart from the existing Singapore law and adopt the approach in the Privy Council decision of Dhooharika v Director of Public Prosecutions (Commonwealth Lawyers’ Association intervening) [2014] 3 WLR 1081 (“Dhooharika”) instead.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Criminal Procedure Code (2020 Rev Ed) s 397Singapore
Penal Code (Cap 224, 2008 Rev Ed) s 499Singapore
Penal Code (Cap 224, 2008 Rev Ed) s 500Singapore
Computer Misuse Act (Cap 50A, 2007 Rev Ed) s 3(1)Singapore
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Article 12Singapore
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Article 14Singapore
Constitution of the Republic of Singapore Article 162Singapore
Public Order Act (Cap 257A, 2012 Rev Ed) s 16(1)(a)Singapore
Public Order Act 2009 (2020 Rev Ed)Singapore
Administration of Justice (Protection) Act 2016 (2020 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Criminal reference
  • Defamation
  • Freedom of expression
  • Public interest
  • Article 14
  • Constitutionality
  • Necessary or expedient
  • Proportionality analysis
  • Fair hearing
  • Question of law
  • Question of fact

15.2 Keywords

  • Criminal reference
  • Defamation
  • Freedom of expression
  • Singapore
  • Constitution
  • Public interest

17. Areas of Law

Area NameRelevance Score
Libel, Slander and Defamation95
Criminal Law90
Constitutional Law85
Civil Procedure40
Sentencing30

16. Subjects

  • Criminal Law
  • Constitutional Law
  • Defamation