Public Prosecutor v Daniel De Costa Augustin and another

• Jurisdiction: Singapore
• Judge: Ng Peng Hong
• Judgment Date: 29 April 2022
• Neutral Citation: [2022] SGMC 22
• Court: Magistrates' Court (Singapore)
• Hearing Date: 27 November 2019,29 January 2020,30 January 2020,26 January 2020,27 January 2020,20 January 2020,07 December 2021,12 November 2021,02 August 2021,26 July 2021,27 July 2021,29 April 2022,21 April 2022,16 March 2022,17 January 2022
• Docket Number: Magistrate Arrest Charge No. 912135 of 2018 & Magistrate Arrest Charge No. 912136 of 2018, Magistrate Court Notice No. 902523 of 2018, Magistrate’s Appeals No. 9078-2022-01 & Magistrate’s Appeals No. 9073-2022-01
• Plaintiff Counsel: Mohamed Faizal, SC, Senthilkumaran Sabapathy, Sheryl Yeo (Attorney-General's Chambers)
• Defendant Counsel: M Ravi (K Cheng Law LLC),Choo Zheng Xi (PETER LOW & CHOO LLC), Priscilla Chia Wen Qi (PETER LOW & CHOO LLC)
• Subject Matter: Criminal Law,Offences,Penal Code,Computer Misuse Act,Criminal Procedure and Sentencing,Sentencing
• Published date: 10 May 2022

District Judge Ng Peng Hong: Introduction

Both the accused persons, namely, Daniel De Costa Augustin (“De Costa”) and Xu Yuanchen (“Xu”), are appealing against their respective conviction and sentence. They were tried jointly.

I allowed both the charges against De Costa to be tried jointly and to be tried together with Xu as I was satisfied that no prejudice would be caused to the accused persons. In respect of the joinder of charges against De Costa, it is trite that the Prosecution has the sole discretion to determine the particular order of calling their witnesses in support of the respective charges against De Costa. Accordingly, I rejected the application of counsel for the prosecution witnesses for the criminal defamation charge to be called first and for that charge to be tried first. As allured to above, I also overruled counsel’s objection to the joinder of charges.

De Costa was convicted on 2 charges. He was sentenced to a total sentence of 3 months 3 weeks’ imprisonment. Xu, other the other hand, was convicted on one charge and was sentenced to 3 weeks’ imprisonment.

The Charges

De Costa was convicted on the following charges:

Charge no.	Details
MAC-912135-2018	are charged that you, on 4 September 2018, at about 7.24pm, at an Internet café located in Chinatown, Singapore, had defamed members of the Cabinet of Singapore by making an imputation concerning members of the Cabinet of Singapore by words intended to be read, to wit, by sending an email titled “PAP MP apologises to SDP” from XXX@yahoo.com.sg to theonlinecitizen@gmail.com which you had written and which stated that there was “corruption at the highest echelons”, intending that the contents of the said email would be published on the website www.theonlinecitizen.com, knowing that such imputation would harm the reputation of members of the Cabinet of Singapore, and you have thereby committed an offence punishable under s 500 of the Penal Code (Cap 224, 2008 Rev Ed).
MAC-912136-2018	are charged that you, on 4 September 2018, at about 7.24 pm, at an Internet café located in Chinatown, Singapore, did knowingly cause a computer at the said Internet café to perform a function for the purpose of securing access without authority to an email account hosted on Yahoo’s email server, namely, XXX@yahoo.com.sg, belonging to one Sim Wee Lee, to wit, by logging into the said Yahoo email account in order to send an email titled “PAP MP apologises to SDP” from the said Yahoo email account to theonlinecitizen@gmail.com, without the consent of the said Sim Wee Lee, and you have thereby committed an offence punishable under s 3(1) of the Computer Misuse Act (Cap 50A, 2007 Rev Ed).

The charge against Xu was as follows:

Charge no.

Details

MCN-902523-2018

are charged that you, on or about 4 September 2018, in Singapore, had defamed members of the Cabinet of Singapore by publishing an imputation concerning members of the Cabinet of Singapore by words intended to be read, to wit, by approving the publication on the website www.theonlinecitizen.com of a letter from ‘Willy Sum’ titled “The Take Away From Seah Kian Ping’s Facebook Post” which stated that there was “corruption at the highest echelons”, knowing that such imputation would harm the reputation of members of the Cabinet of Singapore, and you have thereby committed an offence punishable under s 500 of the Penal Code (Cap 224, 2008 Rev Ed).

I will now give the reasons for my decision. The brief grounds of my decision for the conviction can be found in the transcripts dated 12 November 2021 at pages 1 to 4.

Statement of Agreed Facts (“ASOF”)

The parties have tendered an ASOF which is reproduced below.

Agreed Statement of Facts

The Prosecution and the Defence hereby agree that: I. ACCUSED PERSONS 1 The first accused person is Daniel De Costa Augustin, a 37-year-old (Date of Birth: 15 May 1983) Singaporean male and holder of NRIC No. XXX (“De Costa”). 2 The second accused person is Xu Yuanchen, a 37-year-old (Date of Birth: 18 September 1982) Singaporean male and holder of NRIC No. XXX(“Xu”). At the material time, Xu was the director of The Online Citizen Pte Ltd (“TOC Pte Ltd”), and the sole-administrator and chief editor of the website www.theonlinecitizen.com (“the TOC Website”). II. FACTS 3 On 4 September 2018, at about 7.24pm, at an Internet café located in Chinatown, De Costa sent an email which he had written titled “PAP MP apologises to SDP” (“the Email”) from the email account XXX@yahoo.com.sg to theonlinecitizen@gmail.com, intending that the contents of the said email would be published on the TOC Website. 4 For the purposes of these proceedings, De Costa has also filed affidavits dated 9 January 2020 (“De Costa’s first affidavit”) and 28 January 2020 (De Costa’s second affidavit”) and affirms their contents (including all accompanying exhibits) to the best of his knowledge, information and belief. 5 On the same day, Xu approved the publication of the Email on the TOC Website in the form of a letter from ‘Willy Sum’ titled “The Take Away From Seah Kian Ping’s Facebook Post” at http://www.theonlinecitizen.com/2018/09/the-take-away-from-seah-kian-pings-facebook-post/ (“the Material”). 6 For the purposes of these proceedings, Xu has filed an affidavit dated 9 January 2020 (“Xu’s affidavit”) and he confirms that he affirms its contents (including all accompanying exhibits) to the best of his knowledge, information and belief. 5. On 18 September 2018, the Info-communications Media Development Authority (“IMDA”) issued a direction pursuant to s 16(1) of the Broadcasting Act (Cap 28, 2012 Rev Ed) to Xu, as the director of TOC Pte Ltd, to remove the Material from the TOC Website. Xu complied with the said direction. The above facts are not disputed and are agreed upon between the Prosecution and the Defence pursuant to s 267(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

The Computer Misuse Act (“CMA”) charge The undisputed facts

In respect of the CMA charge against De Costa, it was not disputed that on 4 September 2018, at an internet café located in Chinatown, De Costa did send out an email titled “PAP MP apologises to SDP” (the “ Article”)¹ from the email account XXX@yahoo.com.sg (“the Yahoo Account”) to an email account onlinecitizen@gmail.com, intending that the Article be published on the website www.theonlinecitizen.com (“the TOC website”).

The Yahoo Account was registered by one Sim Wee Lee (“Sim”) who testified on behalf of the Prosecution.

The relevant statutory provisions of the CMA

The relevant provision of Section 3(1) of the CMA states:

Subject to subsection (2), any person who knowingly causes a computer to perform any function for the purpose of securing access without authority to any program or data held in any computer shall be guilty of an offence…

Section 2(5) of the CMA defines “without authority” as follows:

For the purposes of this Act, access of any kind by any person to any program or data held in a computer is unauthorised or done without authority if — (a) he is not himself entitled to control access of the kind in question to the program or data; and (b) he does not have consent to access by him of the kind in question to the program or data from any person who is so entitled.

The key issue for the CMA Charge

It was not disputed that the Yahoo Account was registered in the name of Sim and De Costa did log into a computer to access the Yahoo Account to send out the Article. It was also clear that Sim changed the password to the Yahoo Account on 21 December 2018 with the help of the police, in particular, PW5 DSP Au Yong Kok Kong Jonathan (“DSP Au Yong”).

The main issue for determination was whether De Costa’s access to the Yahoo Account for the purpose of sending out the Article was without authority. In this respect, I found the High Court’s case of Lim Siong Khee v PP [2001] 1 SLR(R) 631 (“Lim Siong Khee”) to be highly instructive. In Lim Siong Khee, the offender was also facing a charge under Section 3(1) of the CMA. The High Court considered Section 2(2) and Section 2(5) of the CMA in interpreting the phrase “without authority” appearing in Section 3(1) of the CMA and held at [19] that consent to access a program or data had to come from the person who was entitled to access the data in question and the access to an account was unauthorised if the person did not have the consent of the kind in question to the program or data. In that case, the High Court held that the offender who had previously been given the password by his ex-girlfriend to access her email, “had no authority whatsoever to access that account to send off lurid e-mails or to check on her personal movements and affairs” (at [19]).

Analysis of the evidence relating to the CMA charge

Bearing in mind the principle in Lim Siong Khee and having heard the evidence and considered the parties’ submissions, I found that De Costa had logged into Sim’s Yahoo Account without Sim’s authority in that Sim did not give his consent for De Costa to send out the Article referred to in the charge to theonlinecitizen@gmail.com (“the TOC Gmail Account”) for publication on TOC website.

As highlighted at [12] and [14] above, it was without doubt that De Costa had knowingly accessed Sim’s Yahoo Account for the purpose of sending out the Article.

De Costa claimed that Sim had given him the password to the Yahoo Account. This was not denied by Sim. Would this amount to consent to allow De Costa to send out the Article? It would still be without authority if De Costa did not have the consent of the kind in question to the program or data. See Lim Siong Khee at [19]. Hence, the issue would be whether De Costa had Sim’s consent to send out the Article.

De Costa claimed that Sim had given him access to the Yahoo Account for...