Daniel De Costa Augustin v Public Prosecutor
|Aedit Abdullah J
|02 June 2020
| SGHC 112
| SGHC 112
|Mohamed Faizal Mohamed Abdul Kadir SC, Ho Lian-Yi and Sheryl Yeo Su Hui (Attorney-General's Chambers)
|06 June 2020
|02 April 2020,13 March 2020
|Ravi s/o Madasamy (Carson Law Chambers)
|02 June 2020
|High Court (Singapore)
|Criminal Motion No 6 of 2020
|Equality before the law,Criminal Motion,Constitutional Law,Criminal Procedure and Sentencing
The Applicant filed this criminal motion pursuant to s 395(5) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”),1 for an order requiring the State Court to refer a question of constitutional law to the High Court. The Applicant named the Attorney-General (“AG”) as the Respondent in the Notice of Motion;2 however, given that these were proceedings under the CPC arising from a prosecution pursued by the Public Prosecutor (“PP”) in the State Courts below, the proper Respondent should have had been the PP. Hence, although the parties’ arguments refer to the AG, the title of the judgment and the text of the judgment will refer to the PP, but no substantive difference results from this.
Having considered the submissions, I am of the view that the motion should be denied.The Facts
The Applicant faces two charges in the State Courts. The first charge is for defamation under s 500 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (“Defamation Charge”),3 and the second is for an offence under s 3(1) of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (“CMA Charge”) for logging into an email account to send an email without the consent of its owner.4
The Prosecution’s case in the State Courts is that the Applicant accessed another person’s email account without consent and sent an email to The Online Citizen, alleging that there was corruption at the highest echelons, and signing off the email in the name of the email owner (“Email”).5 The Email is alleged to have had defamed members of the Cabinet.6
The Applicant contends that his email merely repeated allegations made by Mr Lee Hsien Yang and Dr Lee Wei Ling, siblings of the Prime Minister (“PM’s siblings”).7 His email was based on the PM’s sibling’s statements (“Statements”), which had been ventilated in public and discussed in parliament.8 Hence, the Applicant takes issue that he was prosecuted while the PM’s siblings were not prosecuted.9
The Applicant thus filed an application in the State Court under s 395(2)(
A second application under s 395(2)(
The Applicant then subsequently amended the question in the second application without leave of court. The original question intended to be posed to the High Court in the second application was (“Original Question”):13
Whether the prosecution of [the Applicant] contravenes the Constitutional provision for ‘equal[ity] before the law’ enshrined in Article 12(1) of the Constitution of the Republic of Singapore, in light of the non-prosecution of [the PM’s siblings] for a similar offence, pertaining to a similar subject matter, and having regard to the decision of the Court of Appeal in
Ramalingam Ravinthran v Attorney General 2 SLR 49.
This was then subsequently revised to read (“Revised Question”):14
Whether the prosecution of [the Applicant] contravenes Article 12(1) of the Constitution of the Republic of Singapore, in light of the non-prosecution of [the PM’s siblings], for allegations of a similar, if not more serious nature (that puts them in the position of potential defendants), pertaining to similar subject matter.
The learned District Judge made his decision based on the Revised Question, dismissing the second application, finding that the Revised Question was based on a question of fact, not law, and that in any event, the issue had been determined by the Court of Appeal in
The question before the court in this present s 395(5) CPC application is the Revised Question.16The Applicant’s Arguments
The Applicant argues that the court should grant the order and allow the motion for the following reasons.
The AG’s prosecutorial discretion must be exercised in accordance with the Constitution;17 there was
First, the Revised Question concerns the interpretation or effect of a constitutional provision (Art 12) which has arisen in the State Court proceedings, and this question must be decided in order to decide if the prosecution in the State Court was constitutional.22 The Applicant argues relying on
Second, the judicial discretion should be exercised in favour of the application as the State Court lacks the jurisdiction to deal with this constitutional issue,24 and the issue is novel and has not been dealt with before.25 The question of whether it is unconstitutional to prosecute one person when another person involved in a similar offence has not been prosecuted has only arisen in
Further, it is the first time that an issue on such facts has arisen (a novel issue), raising the question of whether the Statements made by the PM’s siblings should be seen as a family dispute or a criminal matter; it cannot be regarded as a family dispute in relation to the PM’s siblings but a criminal matter in relation to the Applicant.30
In any case, the prohibition against questions that are not novel would not operate in respect of questions concerning the effect of the Constitution, as such question would have to take into account the unique nexus between the effects of that provision to that set of facts.31
Finally, this application is not meant to circumvent the leave requirements of judicial review.32 The caution against using a s 395 CPC criminal motion as a backdoor to judicial review, laid down in
The Respondent argues that the criminal motion should be dismissed.
Section 395 CPC only allows a trial court to state to a superior court a question of law.35 The Revised Question is not a question of law, but is factual in nature, targeted to the facts of the case.36 The Applicant through a sleight of hand raises the new argument that
Even if there is a question of law, the principles governing the exercise of prosecutorial discretion have been conclusively enunciated by the Court of Appeal in
In any event, the Applicant has failed to meet his burden of proof of showing
In any case, clear differentiating factors exist between...
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Xu Yuan Chen (alias Terry Xu) v Attorney-General
...not, does not ipso facto indicate a breach of Art 12(1). Similar observations were made in Daniel De Costa Augustin v Public Prosecutor  5 SLR 609 at  and in Syed Suhail bin Syed Zin and others v Attorney-General  SGHC 274 at –. Indeed, the multitude of factors which......