Attorney-General v Xu Yuan Chen (alias Terry Xu)

• Jurisdiction: Singapore
• Judge: Koo Zhi Xuan
• Judgment Date: 23 June 2022
• Neutral Citation: [2022] SGMC 36
• Court: Magistrates' Court (Singapore)
• Docket Number: R370-OCD-2022-0302-3389
• Published date: 30 June 2022
• Year: 2022
• Hearing Date: 04 May 2022
• Plaintiff Counsel: Sarah Siaw (Attorney-General's Chambers)
• Defendant Counsel: Lim Tean (Carson Law Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Seizure of Property,Section 370(3)(b) Criminal Procedure Code,Whether devices seized relevant for ongoing proceedings
• Citation: [2022] SGMC 36

District Judge Koo Zhi Xuan:

This matter involves an application by the police for the continued seizure of two electronic devices seized from Xu Yuan Chen (also known as Terry Xu) (“the Respondent”) on 8 March 2021, viz, one Huawei mobile phone and one black Central Processing Unit (collectively, “the Devices”). The basis of the police’s application is that the Devices remain relevant to contempt proceedings which have been commenced against the Respondent under the Administration of Justice (Protection) Act 2016 (“AJPA”) on 11 August 2021, and are, as of the date of this judgment, still pending. The central issue in this case is whether the Attorney-General (“AG”), representing the police, has satisfactorily shown that the Devices seized are relevant for the purposes of the contempt proceedings under s 370(3)(b) of the Criminal Procedure Code 2010 (“CPC”).

Facts

The Respondent is the Chief Editor of The Online Citizen (“TOC”), a news media platform in Singapore.

On 27 January 2021, an article titled “Open letter to Singapore’s Chief Justice concerning omissions in ‘Opening of Legal Year 2021’ speech” (“the Article”) was published on the website of TOC. The Article reproduced a letter (“the Letter”) written in the name of one “Julie O’Connor” (“JOC”). On the same day, the Article was shared via a post on the Facebook page “The Online Citizen Asia” (“the Facebook Post”).

On 29 January 2021, the police were authorised under sections 22(1)(b) and 23(1) of the AJPA to investigate a suspected contempt of court in relation to the publication of the Article and the Facebook Post.

On 8 March 2021, in the course of investigations, the police seized the Devices from the Respondent’s place of residence. On 9 March 2021, the police recorded a statement from the Respondent (“the Statement”), which contains questions posed by the police and answers provided by the Respondent on the Respondent’s knowledge of, and his role in, the publication of the Article and the Facebook Post, amongst other things.

On 8 July 2021, the AG applied for leave to apply for an order of committal against the Respondent for contempt of court under s 3(1)(a) of the AJPA. Leave was granted by the High Court on 6 August 2021. On 11 August 2021, the AG applied for an order of committal against the Respondent for contempt of court in connection with his publication of, and refusal to delete, the Article and the Facebook Post (the “Contempt Proceedings”).

On 8 September 2021, the Respondent applied for leave to commence judicial review proceedings in respect of the AG’s decision to prosecute him for contempt of court (“the JR Proceedings”). His application was dismissed by the High Court on 25 November 2021 (see Re Xu Yuan Chen (alias Terry Xu) [2021] SGHC 294). The Respondent subsequently filed an appeal against the High Court’s decision, which, as of the date of this judgment, is pending before the Court of Appeal. The Contempt Proceedings have been held in abeyance pending the determination of the Respondent’s appeal in the JR Proceedings.

On 2 March 2022, the police filed a s 370 CPC report (“the s 370 CPC Report”) in this Court seeking an order for the continued seizure of the Devices until the “conclusion of the … Contempt Proceedings” (the s 370 CPC Report at [10(c)]). The order sought in the s 370 CPC Report differs from that sought in the AG’s written submissions dated 21 April 2022 (“AG’s Written Submissions”), in which the AG requested an extension of the seizure of the Devices “by six months”.

The material paragraphs in the s 370 CPC Report are set out as follows: [4] The Devices were seized by the Police during investigations into a case of suspected Contempt of Court under Section 3(1)(a) of the [AJPA], pursuant to: ■ Section 35(1)(b) of the [CPC], as the Devices were suspected to have been used to commit the alleged contempt; and ■ Section 35(1)(c) of the CPC, as the Devices were suspected to constitute evidence of the alleged contempt.

….

[8] The Police are of the view that the Devices remain relevant for the purposes of the contempt proceedings against [the Respondent], and should not be disposed of pursuant to section 370(3)(b) of the CPC, for the following reasons: a. It is believed that [the Respondent] used one or both of the Devices to publish the Article and/or the Facebook post. The Devices were also found to contain Facebook messages exchanged between [the Respondent] and [JOC] concerning the publication of the Article. The Devices and their contents may therefore be relevant in establishing the authorship and publication of the Article and the Facebook Post, as well as the circumstances which led to their publication. b. [The Respondent] has yet to file any affidavit in the contempt proceedings setting out his defence and his account of the facts. In addition to the issues at [8(a)] above, the Devices may therefore constitute or contain evidence which is relevant to [the Respondent’s] defence and/or to disputes of fact in the contempt proceedings. It would therefore be premature for the Devices to be disposed of at this stage.

…

[10] As the items seized remain relevant for the purposes of ongoing court proceedings, I hereby apply for the Devices to remain in the Police’s custody…

[emphasis in the original]

The Respondent filed an affidavit dated 7 April 2022 (“the Respondent’s Affidavit”) in response to the s 370 CPC Report, and made the following claims: The Devices are not relevant for the ongoing Contempt Proceedings (at [3]), as they were not used to publish the Article or the Facebook Post (at [7]). The Respondent has already admitted to the publication of the Article in the Statement, and there is also no dispute that JOC was the author of the Letter, which the Article had reproduced (at [5]). Given that the police have been in possession of the Devices for over a year, they must have been able to ascertain whether the Devices were in fact used or not to publish the allegedly offending materials (at [6]). The Facebook messages exchanged between the Respondent and JOC concerning the publication of the Letter can be accessed from any digital device, as long as one has the relevant log-in details. On 8 March 2021, when the Devices were seized from the Respondent’s place of residence, the police were able to access these Facebook messages using their own devices (at [8]).

Summary of parties’ submissions

The AG submitted that s 370(3)(b) of the CPC applies in the present case to prohibit the disposal of the Devices, as they remain relevant for the purposes of the Contempt Proceedings, which have been held in abeyance pending the resolution of the JR Proceedings.

The AG highlighted that because of the JR Proceedings, the Respondent has not filed his reply affidavit in the Contempt Proceedings where he would be expected to state his defence and adduce evidence in support of his position. According to the AG, it is unclear what position the Respondent would ultimately take at the Contempt Proceedings. Given that the Respondent had been coy about his precise role in the publication of the Facebook Post during investigations, the AG submitted that “it is impossible to conclude that the Devices contain no evidence that may help to determine the truth or falsity of any allegations [the Respondent] may [subsequently] make”.¹ Using examples, the AG explained that text messages, metadata, or archived material which may subsequently be found in the Devices could turn out to be relevant in establishing the extent of the involvement of the Respondent or other parties in the publication of the Article and the Facebook Post.² If it transpires that the Devices were used to commit contempt, the Devices may also be disposed of under s 364(2) of the CPC at the conclusion of the Contempt Proceedings. The AG thus urged this Court not to dispose the Devices pursuant to s 370(3)(b) of the CPC, and to extend the police’s seizure of the Devices by a further six months. This is on the basis that in six months’ time, the Respondent’s appeal in the JR Proceedings would likely have been determined and the Contempt Proceedings further advanced.

The Respondent’s submissions largely echo the contents of the Respondent’s Affidavit (see above at [10]). The Respondent highlighted that the police have produced no evidence to support the suggestion that the Devices were used to publish the Article and the Facebook Post, despite having seized the Devices for more than a year. Having denied that the Devices were used to publish the Article and the Facebook Post, the Respondent submitted that the AG had failed to provide the Court with a reasonable basis to conclude that the Devices seized remain relevant, and the Devices should therefore be returned to the Respondent.

Issue to be determined

The sole issue before this Court is whether sufficient information has been provided by the police for this Court to be satisfied that the Devices are indeed relevant for the purposes of the Contempt Proceedings, such that they should not be disposed of pursuant to s 370(3)(b) of the CPC.

Decision of the Court Preliminary matters

It is not disputed that the relevant principles and procedure set out in s 370 CPC apply in the present case, even though the ongoing court proceedings under the AJPA (ie, the Contempt Proceedings) are quasi-criminal in nature. While the power of seizure under s 35 CPC has been explicitly incorporated into the AJPA (pursuant to s 23(1) read with Part 1 of the Schedule to the AJPA), the duty of reporting seized property under s 370 CPC has not. There is also no provision in the AJPA stipulating how properties seized should be dealt with or disposed of. Nevertheless, the AG submitted that once a law enforcement agency (“LEA”) seizes property pursuant to s 35 CPC, the LEA comes under a duty to report that seizure pursuant to...