SINGAPORE
Terry Xu was originally sentenced to three weeks’ jail by a district court in April 2022 after he was convicted of a criminal defamation charge. PHOTO: ST FILESelina Lum
Senior Law Correspondent
SINGAPORE - The High Court ruled on Friday that Terry Xu, the chief editor of The Online Citizen (TOC), does not have to serve any more jail time for defaming Cabinet members on top of the three-week term he has already completed.
Xu was originally sentenced to three weeks’ jail by a district court in April 2022 after he was convicted of a criminal defamation charge.
An unusual situation arose because Xu, who has since relocated to Taiwan, chose to serve the jail term, even as he pursued an appeal.
In May 2023, the High Court allowed his appeal and reduced his sentence to a fine of $8,000, which carried a two-week default jail term in lieu of payment.
Xu did not want to pay the fine. His lawyers, Mr Choo Zheng Xi and Ms Carol Yuen, argued that considering the time he has already served, he should be deemed to have served the default term in lieu of paying the fine.
But the prosecution argued that this was legally not allowed, and that he must serve the two-week default term despite having previously served the three-week prison term.
On Friday, Justice Aedit Abdullah ruled that the previously served jail term should be treated as going towards the default sentence, and thus nothing remains to be served or paid.
The judge said: “Any member of the public would be surprised, I think, that the three weeks previously served does not count, and that the appellant remains liable to either serve two weeks’ imprisonment, piled on top of the previous three weeks, or pay $8,000, or be subject to enforcement for that $8,000.
“The reduction of sentence imposed by the court in effect makes his punishment more severe: The appellant would have been better off had he lost his appeal.”
The prosecution, led by Senior Counsel Mohamed Faizal Mohamed Abdul Kadir, had argued that a default sentence is imposed not to punish the offender, but to prevent evasion of payment of the fine.
But the judge said anyone who has served a default sentence would attest that it was punishment.
“You are in prison. You are deprived of your liberty. You are not free,” he said.
The prosecution also argued that the Criminal Procedure Code (CPC) does not provide a mechanism for the backdating of a default term, and cited a Malaysian High Court case which held that a default sentence cannot be backdated.
Justice Abdullah was not persuaded, saying that the Malaysian case was concerned with remand rather than punishment.
He turned to a provision under the CPC which states that when the law does not provide for a certain procedure, “such procedure as the justice of the case may require” may be adopted.
He found that there was a gap in the law relating to the current case.
“And the justice of the case requires that I adopt a procedure as regards the determination of the default sentence for the fine that takes into account the previously served imprisonment.”
He added that there could be various reasons for Xu choosing to serve his original sentence, but these should still not lead to an injustice.
On Sept 14, 2018, Xu had published a letter on the TOC website written by contributor Daniel De Costa Augustin, which contained the phrase “corruption at the highest echelons”.
Xu and De Costa were each charged with one count of criminal defamation for making or publishing an imputation that would harm the reputation of members of the Cabinet.
De Costa was also charged with unauthorised use of an e-mail account to send the letter, for which he was sentenced to three months’ jail in 2022. He was fined $10,000 for defamation.
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