Daniel De Costa Augustin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 02 June 2020
• Neutral Citation: [2020] SGHC 112
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Docket Number: Criminal Motion No 6 of 2020
• Date: 02 June 2020
• Hearing Date: 02 April 2020,13 March 2020
• Subject Matter: Equality before the law,Criminal Motion,Constitutional Law,Criminal Procedure and Sentencing
• Published date: 06 June 2020
• Defendant Counsel: Mohamed Faizal Mohamed Abdul Kadir SC, Ho Lian-Yi and Sheryl Yeo Su Hui (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2020] SGHC 112
• Year: 2020

Aedit Abdullah J: Introduction

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) of the CPC to refer to the High Court a question relating to Art 23 and 24 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”).¹⁰ The question was revised by the Applicant without leave of court, but this revised question was dismissed.¹¹

A second application under s 395(2)(a) CPC was made to the State Court, this time raising an issue concerning Art 12 of the Constitution (“the second application”).¹²

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 [2012] 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 Ramalingam Ravinthran v Attorney General [2012] 2 SLR 49 (“Ramalingam”).¹⁵

The question before the court in this present s 395(5) CPC application is the Revised Question.¹⁶

The 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 prima facie breach of Art 12(1) of the Constitution due to the choice of prosecuting the Applicant but not the PM’s siblings, who had made similar or more severe allegations;¹⁸ and given the prima facie breach, the evidential burden is on the AG to justify the exercise of his prosecutorial discretion (Ramalingam).¹⁹

Chee Soon Juan and another v Public Prosecutor and other appeals [2011] 2 SLR 940 (“Chee Soon Juan”) had set down a two-stage test to determine when constitutional questions can be referred to the High Court.²⁰ First, a constitutional question must have had arisen; and second, it must be proper to state the case to the High Court.²¹ The requirements are fulfilled in this case.

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 Gujarat Ginning and Manufacturing Company Limited v Motilal Hirabhai Spinning and Manufacturing Company Limited LNIND 1935 BOM 164 (“Gujarat”) that inferences to be drawn from admitted or proved facts is a question of law, and hence the Revised Question should be characterised as a question of law.²³

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 obiter and not been directly addressed by the courts:²⁶Ramalingam ([10] above) was distinct from this case as it dealt with the different issue of whether charging persons engaged in the same criminal conduct with different offences contravened Art 12(1) of the Constitution;²⁷Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 (“Phyllis Tan”) was also distinct as it dealt with the issue of the limits to prosecutorial power, specifically as to whether adducing of entrapment evidence by the AG was an abuse of prosecutorial power;²⁸ and Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 (“Teh Cheng Poh”) was also distinct as it only considered the question of whether the AG had the discretion to choose which offence to charge the accused with.²⁹

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 Chee Soon Juan ([14] above), was due to the factual circumstances of that case, and do not apply to the present application.³³ In any case, the Applicant has a right to state a case under s 395 CPC, and the process of judicial review should not be an exclusive means by which the Applicant can pursue his constitutional rights.³⁴

The Respondent’s Arguments

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 Ramalingam ([10] above) had not considered the issue of what constitutes a “relevant factor” or an “unbiased consideration”.³⁷ However, this is necessarily a fact specific exercise.³⁸ It is not sufficient to just set out a new factual situation as different factual matrices will always raise new factual issues,³⁹ but the same legal principles should apply.⁴⁰

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 Ramalingam and apply to every prosecution.⁴¹ They are settled and uncontroversial and no reference should be permitted (Chee Soon Juan at [33]).⁴²

In any event, the Applicant has failed to meet his burden of proof of showing prima facie that the AG had breached Art 12 of the Constitution in prosecuting him.⁴³ The burden is on the Applicant to show that the AG failed to give unbiased consideration to all relevant factors or took into account irrelevant considerations such that no valid grounds exist for deciding to prosecute him and not the PM’s siblings (Ramalingam at [51] and [70]).⁴⁴ Without such prima facie evidence, the presumption would be that the AG’s discretion was constitutionally exercised (Ramalingam at [44]).⁴⁵ Here, no evidence was produced by the Applicant to show that the AG considered irrelevant factors.⁴⁶ Further, even if the Applicant has the same culpability as the PM’s siblings, there are many other legitimate reasons to differentiate them; the mere fact of different treatment of persons committing similar offences does not ipso facto amount to prima facie unconstitutionality (Ramalingam at [70]).⁴⁷

In any case, clear differentiating factors exist between...