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Criminal defamation trial: High Court rules prosecution obliged to disclose accused persons’ statements to Defence if such statements could help Defence or weaken Prosecution’s case

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The prosecution has an obligation to disclose accused persons’ statements to the defence if such statements could help the defence’s case or weaken that of the prosecution, the High Court ruled on Thursday (18 Mar).

District Judges Christopher Tan and Ng Peng Hong had, in separate instances, dismissed TOC chief editor Terry Xu and contributor Daniel Augustin De Costa’s applications to have the prosecution disclose their statements that were recorded under Section 22 of the Criminal Procedure Code (CPC).

The statements were taken during investigations regarding the case, which stemmed from a letter submitted to TOC by Mr De Costa.

In the letter published on TOC on 4 September 2018, Mr De Costa commented that there has been “multiple policy and foreign screw-ups, tampering of the Constitution, corruption at the highest echelons and apparent lack of respect from foreign powers” in Singapore “since the demise of founding father Lee Kuan Yew”.

Mr Xu and Mr De Costa were charged on 12 December under Section 499 of the Penal Code for criminal defamation, following investigations in Nov 2018.

In a written judgement released on Thursday, Chief Justice Sundaresh Menon ruled that while the district judges’ rulings had reached “the correct result” in his view, there was a “misapprehension” in terms of the term “unused material” in Muhammad bin Kadar v Public Prosecutor — the case that gave rise to what is known as ‘the Kadar obligation’.

The Kadar disclosure obligation, based on the Court of Appeal’s ruling in the namesake murder case, stipulates that the prosecution is legally bound to disclose two kinds of unused material, namely:

  • Unused material which is likely to be admissible and might reasonably be regarded as credible and relevant to either the guilt or innocence of the accused; and
  • Unused material which is likely to be inadmissible, but may open up a real (not fanciful) chance of pursuing a line of inquiry leading to material that is likely to be admissible, might reasonably be regarded as credible, and may be relevant in proving the guilt or innocence of the accused.

CJ Menon in his judgement on Thursday observed that based on the reasoning behind the decision in Kadar, used material would cover material that is part of the prosecution’s “affirmative” case instead of its “responsive” case.

The material cannot continue to be “in limbo” between the “used” and “unused” categories simply based on when the prosecution decides to confirm that such material will not be included in the prosecution’s responsive case, he said.

“Such a view would cut against the tenor of the disclosure obligations established in Kadar and would potentially denude the disclosure obligation of much of its significance,” the Chief Justice elaborated.

Judge Tan’s reasoning behind rejecting Section 22 statements being classified as “unused”, said CJ Menon, appeared to “tilt the balance in favour of the Prosecution’s interest in retaining the potential” to use the Section 22 statements for certain purposes.

Such purposes include cross-examination or impeaching defence witnesses, which may result in the defence being prevented from having “actual access” to evidence “that might potentially be important” to establish the accused person’s innocence.

Dismissing the application, however, CJ Menon opined that in the case at hand, the Kadar disclosure obligations had not been triggered, as there was no indication that the Section 22 statements would assist the defence’s case or weaken that of the prosecution.

“There was no material before me to cast doubt on the Prosecution’s assessment and its consequent assertion that the statements were not disclosable at this stage, and there was, therefore, no basis for displacing the working presumption that the Prosecution was in compliance with its obligations,” he reasoned.

CJ Menon also ruled that it was “difficult to consider whether injustice, much less material injustice” had taken place in the present case, as the criminal defamation proceedings are still at an early stage, particularly taking into account that the prosecution has not closed its case at this point.

Referencing the earlier “trial by ambush” arguments put forth by both Mr De Costa’s and Mr Xu’s lawyers, the Chief Justice said that he was “not convinced” that such would amount to any form of injustice, as anything relevant in their Section 22 statements would have concerned matters that were already known to both of them.

It would be, henceforth, be “unclear” as to how the prosecution’s withholding of their Section 22 statements would prejudice their case, said CJ Menon.

The Chief Justice also noted that the prosecution had confirmed that it will release the statements to Mr De Costa and Mr Xu in due course.

In the event that they are wrongly convicted as a result of their statements being withheld by the prosecution earlier, the two men could raise the issue at the appeal stage, he added.

There could even be a retrial if it is proven upon appeal that the prosecution’s withholding of Mr De Costa and Mr Xu’s Section 22 statements was due to the statements potentially being evidence that would “undoubtedly weigh against the Prosecution”, the Chief Justice added.

In general, however, an accused person’s statements may not necessarily fall under the category of “unused evidentiary material” within the ambit of the Kadar disclosure obligations, said CJ Menon.

He reiterated that such is because the accused person “would almost invariably have known of his earlier statements and would have known of the underlying facts that were or could have been covered in those statements”.

However, the Chief Justice stressed that there are exceptions to the above, such as in a situation where an accused person had suffered some form of memory loss due to a medical condition.

Decision of District Judges to dismiss De Costa’s previous applications failed to follow Court of Appeal’s ruling in Kadar: De Costa’s lawyer

Mr De Costa’s lawyer M Ravi argued in Feb that the District Judges’ rulings were made in contravention of the Court of Appeal’s decision in Kadar.

He submitted that the decision of the two District Judges who dismissed his client’s previous applications for the disclosure of his Section 22 statement was in breach of the stare decisis doctrine.

Under stare decisis, a lower court is bound to follow the principles used by a higher court when deciding cases with similar facts.

Mr Ravi highlighted Judge Tan’s reasoning in dismissing Mr De Costa’s first application, in which the judge stated that the accused’s statement cannot be affirmatively classified as unused “until after the accused has given his testimony” and it has been assessed that the statement is “not going to be used for cross-examination”.

“With respect, once an accused person’s statement was not adduced into evidence as part of the Prosecution’s case — that is, that it was not intended to be introduced as evidence throughout the process prior to the Prosecution closing its case — it would have already fallen into the category of “unused material” as set out in Kadar,” he submitted.

Prosecution ought to err on the side of disclosure, according to case law: Xu’s lawyers

Mr Xu’s lawyers, Remy Choo and Priscilla Chia argued that “the mere fact that the prosecution has not decided whether it will be relying on” Mr Xu’s Section 22 statement “should not exclude the statement from being considered an unused material”.

“Otherwise, there can potentially be a universe of unused material that will only be disclosed at the end of the trial on the basis that the Prosecution needs to continuously evaluate whether it may have to rely on the unused material, depending on developments at trial.

“This will prejudice accused persons, who will be prevented from relying on such materials for the conduct of their Defence,” they submitted.

Mr Xu’s lawyers argued in the alternative that even if the Court finds that the statement does not fall under the prosecution’s Kadar disclosure obligation, their client’s Section 22 statement ought to be disclosed pursuant to Section 6 of the CPC.

Background on criminal defamation case

Mr Xu and Mr De Costa were investigated on 20 November 2018 under Section 499 of the Penal Code, which states that “whoever, by words either spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person”.

Both were subsequently charged on 12 December under the same Penal Code provision at State Courts the following day under Section 500 of the Penal Code for criminal defamation.

Mr De Costa was alleged to have sent an email titled “PAP MP apologises to SDP” on 4 September 2018 from [email protected], with the intention of having the contents of that email to be published on TOC using the pseudonym of “Willy Sum”.

Mr De Costa was additionally charged for committing an offence under the Computer Misuse Act of Singapore.

The offending article was taken down under the orders of IMDA on 18 Sep 2018.

On 20 November 2018, the police seized electronic devices from Mr De Costa’s and Mr Xu’s respective residences under court orders.

Mr Xu was subjected to an eight-hour interview with the police on the day itself, while Mr De Costa was interviewed at a later date.

Under Section 500 of the Penal Code, those found guilty of criminal defamation may be subject to a maximum sentence of two years’ imprisonment or a fine or both.

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Court Cases

Rahayu Mahzam’s role in reviewing redacted messages during Raeesah Khan investigation revealed in Pritam Singh’s trial

In the ongoing trial involving Workers’ Party leader Pritam Singh, MP Rahayu Mahzam was named in connection with a redaction of a message during the Committee of Privileges review of Raeesah Khan’s parliamentary lie. Loh Pei Ying testified that Rahayu reviewed the messages with her and agreed on what should be redacted.

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3 hours ago

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18 October 2024

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In an ongoing trial involving Workers’ Party (WP) leader Pritam Singh, Rahayu Mahzam, a Singapore Member of Parliament (MP) and a member of the Committee of Privileges (COP) overseeing the matter of Raeesah Khan’s conduct in Parliament in November 2021, has been named in connection with a controversial redaction of a key message.

As a COP member, Rahayu was responsible for reviewing evidence related to Khan’s parliamentary lie, which ultimately led to Khan’s resignation and a S$35,000 fine.

Rahayu’s involvement in the review process was disclosed during the cross-examination of Loh Pei Ying, a former WP cadre member and assistant to ex-WP MP Raeesah Khan.

Loh, testifying for the prosecution, was questioned about her role in editing messages from a group chat involving herself, Khan, and Yudhishthra Nathan, a WP cadre member.

A message from Nathan, dated 12 October 2021, suggested withholding details about Khan’s fabricated rape anecdote, which she had shared in Parliament. The message read: “In the first place I think we should just not give too many details. At most apologise for not having the facts abt her age accurate.”

Under cross-examination by Singh’s lawyer, Andre Jumabhoy, Loh admitted to deliberately redacting this message before submitting the document to the COP.

She initially claimed the redaction was because the message related to another MP, but when pressed by Jumabhoy, she conceded that this was a “bare-faced lie.”

In response to Jumabhoy’s line of questioning about whether the redaction was intended to “hide information” or preserve the integrity of Nathan, herself, or Khan, Loh responded, “I wouldn’t say that,” but later admitted to hiding the comment, saying, “I hid this comment, yes,” and confirming that Nathan’s suggestion was to “just lie about it some more.”

Loh also revealed during the trial that Rahayu had been involved in the redaction process.

When Jumabhoy accused Loh of dishonesty for arbitrarily redacting messages and providing false reasons for the redactions, she requested to explain the process to the court.

According to Loh, she had worked closely with Rahayu and a senior parliamentary staff member for three hours, reviewing WhatsApp messages that were intended for submission to the COP.

Loh testified, “The entire conversation was verified by a senior parliamentary staff and Rahayu Mahzam, who sat beside me and verified every message before it was redacted on my phone. They agreed it should be redacted.”

Although Loh acknowledged that the final decision to redact the message was hers, she believed Rahayu was fully aware of the content of the message and the rationale for its redaction.

Loh explained that her primary reason for redacting the message was to prevent Nathan from facing public backlash, saying, “I didn’t want him to be attacked for his comment.”

Jumabhoy, during cross-examination, suggested that Loh had redacted the message to preserve the group’s credibility, asserting that the redaction was “to preserve Yudhishthra Nathan’s integrity” and that the message gave a “bad impression.”

Loh agreed that the message “doesn’t look good on him,” but clarified that her intention was to protect Nathan from scrutiny, not to interfere with the COP investigation.

Another critical point discussed in court was an exchange between Loh and Khan on 7 October 2021, in which Loh suggested that Khan gather stories from other sexual assault survivors to support her point in Parliament.

The defence suggested this was an attempt to cover Khan’s lie with other stories. Loh explained, “It was a grey area between not lying anymore but still supporting police investigations,” adding that this would allow Khan to “avoid lying again but still address her original point in Parliament.”

When questioned by the judge, she confirmed that the idea was not to obstruct the investigation into Khan’s anecdote, but rather to support broader investigations into how sexual assault victims are treated.

The trial has also explored Loh’s memory of an August 10 meeting with Singh. She initially testified that Singh had nodded during their conversation about whether the issue of Khan’s lie would arise again in Parliament.

However, she later clarified that Singh had actually shaken his head. “My memory is fuzzy,” she explained, and added that they “avoided talking about it explicitly” during their brief exchange.

Another important moment in the trial was the discussion of a message from Khan on 8 August 2021, in which she said she had been told to “take the information to the grave.”

Loh testified that she first saw the message at the time, but it only “fully registered” with her on 29 November, when she was preparing for the COP inquiry. She admitted that she had been distracted when the message first came through, focusing instead on a subsequent message from Khan.

Singh is currently contesting charges that he misled the COP about his actions after learning that Khan had lied in Parliament.

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Court Cases

Impeachment bid against Raeesah Khan rejected: Court finds no ‘material contradiction’ in testimony

During Wednesday’s trial, lawyer Andre Jumabhoy sought to impeach Raeesah Khan, citing contradictions in her testimony. Despite objections from Deputy Attorney-General Ang Cheng Hock, Jumabhoy argued that a text message contradicted her statements. The judge ultimately rejected the impeachment bid.

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2 days ago

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16 October 2024

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Andre Jumabhoy, the lawyer representing Pritam Singh, Secretary-General of the Workers' Party and prosecution witness Raeesah Khan

During the trial on Wednesday morning, Andre Jumabhoy, the lawyer representing Pritam Singh, Secretary-General of the Workers’ Party, accused prosecution witness Raeesah Khan of repeatedly lying during her cross-examination on Tuesday and sought to impeach her.

Jumabhoy argued that a text message sent by Khan to Singh on 4 October 2021 was “materially contradictory” to the evidence she provided in court.

After Khan was asked to step down from the stand, Jumabhoy formally made an oral application for impeachment. However, Deputy Principal District Judge Luke Tan suggested that Jumabhoy gather more evidence before proceeding. Despite this, Jumabhoy pressed on with the application, claiming that the text message demonstrated a significant discrepancy between Khan’s court testimony and her actions.

In his oral submissions, Jumabhoy argued that the text message showed Khan had acted inconsistently with her testimony. He alleged that this discrepancy undermined her credibility.

However, Deputy Attorney-General (DAG) Ang Cheng Hock objected to the impeachment, arguing that the text message aligned with the overall gist of Khan’s testimony.

DAG Ang pointed out that Khan had not received the confirmation she sought from Singh and instead followed his prior advice, maintaining her interpretation of what Singh had allegedly told her during a meeting at her home on 3 October 2021.

Ang further stressed that the court should consider the entire context of the situation, rather than focusing solely on the text message. He argued that relying only on the text would be “completely inappropriate,” asserting, “There is no material discrepancy.” DAG Ang concluded that the grounds for impeachment had not been met.

Ultimately, the judge agreed with the prosecution’s objection and refused the impeachment request.

Deputy Principal District Judge Luke Tan, reading the agreed statement of facts (SOF), told the counsels that he agreed with the prosecution’s view. He noted that Raeesah Khan’s response to why she did not tell the truth could not be considered in isolation, as there had been prior discussions that provided important context.

The judge also noted there was no dispute that a meeting between Singh and Khan took place on 3 October 2021, as documented in the SOF. Singh had visited Khan at her home, during which he allegedly advised her on how to handle her parliamentary lie about a rape victim’s experience with the police.

It was further revealed that Khan sent Singh a text message on 4 October 2021, asking for further guidance during the parliamentary sitting, where Law and Home Affairs Minister K. Shanmugam questioned her.

Judge Tan acknowledged that it appeared Khan was specifically confronted by Shanmugam, prompting her to reach out to Singh for reassurance.

The judge ultimately concluded that Khan’s response was consistent with her earlier claims about Singh’s advice. He stated, “I do not see a contradiction, let alone a material contradiction.”

In a separate line of questioning, Jumabhoy challenged Khan’s previous testimony that Singh did not require her to tell the truth about her false statements in Parliament.

He raised an email sent by Singh to all Workers’ Party MPs on 1 October 2021, stressing the importance of backing up statements made in Parliament to avoid facing the Committee of Privileges (COP).

In her testimony, Khan claimed that she and Singh did not discuss this email during their meeting on 3 October.

Jumabhoy suggested that Singh’s email highlighted the serious consequences of lying in Parliament, contrasting with Khan’s claim that Singh told her there would be no judgment if she maintained her false account. He argued that any reasonable person would have been confused by these conflicting messages and would have sought further clarification from Singh.

Khan, however, maintained her version of events, testifying that Singh had advised her to “continue with the narrative” during their 3 October meeting. She stated that if Singh had told her to confess, she would have prepared accordingly and told the truth.

Jumabhoy pressed further, questioning whether Khan, as an experienced MP who had been in Parliament for over a year, needed specific instructions to tell the truth.

He emphasized that she did not need a directive to lie, yet claimed she required one to tell the truth. Khan responded that she sought advice from her leaders out of fear and confusion, as she felt overwhelmed by the mistake she had made.

Jumabhoy continued to argue that Khan should have questioned Singh’s advice if she found it vague or inconsistent with his previous email about parliamentary consequences. He pointed out that Khan had texted Singh during the 4 October parliamentary sitting, asking for reassurance when Shanmugam confronted her, suggesting that if Singh had already told her what to do, there was no need for this additional message.

Khan responded that she sought reassurance to confirm Singh still supported her decision to maintain the narrative, even after their discussion the night before.

Despite these arguments, the judge ultimately sided with the prosecution, ruling that there was no material contradiction in Khan’s testimony and denying the impeachment request.

The trial continues, with Singh facing charges under the Parliament (Privileges, Immunities and Powers) Act, related to lies told by Khan in Parliament in August 2021 about a rape victim’s interaction with the police.

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