XU YUANCHEN v PUBLIC PROSECUTOR

[2024] SGCA 17 Court of Appeal 20 May 2024 • CA/CM 28/2023 • 41 min read

31 cases cited (29 SG, 2 foreign) Cited by 1 case

Outcome

Application dismissed

we therefore dismissed the application.

Source: [2024] SGCA 17, Court of Appeal, decided 20 May 2024. Read directly from the judgment.

Key facts

Court	Court of Appeal
Decided	20 May 2024
Judges	Andrew Phang Boon Leong, Sundaresh Menon, Tay Yong Kwang
Charges / claim	Criminal Law, Criminal Procedure and Sentencing, Constitutional Law
Outcome	Application dismissed
Counsel	Attorney-General's Chambers, RCL Chambers Law Corporation, Choo Zheng Xi, Mohamed Faizal, Niranjan Ranjakunalan, Norine Tan

Source: [2024] SGCA 17, Court of Appeal, decided 20 May 2024 — eLitigation. Updated 25 June 2026.

Catchwords

Criminal Law — Defamation Criminal Procedure and Sentencing — Criminal references Constitutional Law — Fundamental liberties — Freedom of expression

Practice Areas

Criminal Law Criminal Procedure and Sentencing Constitutional Law

Judges (3)

Andrew Phang Boon Leong Delivered Sundaresh Menon Coram Tay Yong Kwang Coram

Counsel (6)

Attorney-General's Chambers Firm RCL Chambers Law Corporation Firm Choo Zheng Xi Counsel Applicant Mohamed Faizal Counsel Respondent Niranjan Ranjakunalan Counsel Respondent Norine Tan Counsel Respondent

Parties (2)

Public Prosecutor Respondent Xu Yuanchen Applicant

Case Significance

Xu Yuanchen v Public Prosecutor [2024] SGCA 17 was decided by the Singapore Court of Appeal on 20 May 2024 in Criminal Motion No 28 of 2023. The grounds of decision were delivered by Andrew Phang Boon Leong SJ, sitting with Sundaresh Menon CJ and Tay Yong Kwang JCA, after a hearing on 26 March 2024. The application concerned a criminal reference, with the underlying matter touching on criminal defamation and the constitutional freedom of expression. The court observed that applications for criminal references are, by their very nature, rare, and that when made they rarely succeed in obtaining the leave of the court for the alleged questions of law of public interest to be heard. It noted that an applicant would already have exhausted the legal right of appeal, and referred to Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matter [2013] 2 SLR 141 at [21] and Kho Jabing v Public Prosecutor [2016] 3 SLR 135 at [47], emphasising that a liberal construction of s 397 of the Criminal Procedure Code 2010 (2020 Rev Ed) would seriously undermine the one-tier appeal system and the interests of finality. The applicant, Xu Yuanchen, was represented by Choo Zheng Xi of RCL Chambers Law Corporation, and the respondent by the Attorney-General's Chambers.

Summary

SUPREME COURT OF SINGAPORE

20 May 2024

Case summary

Xu Yuanchen v Public Prosecutor [2024] SGCA 17
Court of Appeal/Criminal Motion No 28 of 2023

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Grounds of Decision of the Court of Appeal (delivered by Senior Judge Andrew Phang Boon Leong):

Outcome: The Court of Appeal (the “CA”) held that the five questions arising from the decision of the High Court to uphold the applicant’s conviction for criminal defamation were either not questions of law, or not questions of law of public interest. It thus dismissed the application to refer these five questions to the CA pursuant to s 397 of the Criminal Procedure Code (2020 Rev Ed) (the “CPC”).

Pertinent and significant points of the judgment

• Whether the applicant had been prejudiced by the appeal judge’s adoption of a different interpretation of the article than the trial judge was ultimately a question which could only be answered with reference to the facts of the specific case, and hence was not a question of law. In any event, it was difficult to see how the applicant had been prejudiced, as the meaning adopted by the appeal judge differed from that adopted by the trial judge only in that it incorporated part of the meaning advanced by the applicant himself: at [42]–[45].

• Whether the phrase “necessary and expedient” applied to the second category of restrictions on the freedom of speech and expression under Article 14(2)(a) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) had been answered in the negative over 30 years ago. That holding was consistent with the syntax and content of Article 14(2)(a) of the Constitution, and was not inconsistent with the case of Wham Kwok Han Jolovan v Public Prosecutor [2021] 1 SLR 476, which instead concerned Article 14(2)(b) of the Constitution: at [49]–[58].

• It was well-settled that Article 162 of the Constitution operated as a law-enacting provision in respect of all existing laws at the time when the Constitution came into force. There was no basis for holding that laws on criminal defamation had to be separately passed by Parliament: at [61].

Background to the appeal

1 The applicant is the director of The Online Citizen Pte Ltd (“TOC”), a company which runs the socio-political website “www.theonlinecitizen.com”. On 4 September, he approved the publication of an article, which took the form of a letter purportedly written in the name of a third person, but had in fact been authored by the applicant’s co-accused and sent to the TOC team using that third person’s email account. Amongst other things, the letter made allegations concerning the “present PAP leadership” relating to “corruption at the highest echelons”.

2 The applicant was subsequently charged with criminal defamation. The District Judge hearing the case at first instance (the “trial judge”) interpreted the article as alleging that there had been illegal, fraudulent, or dishonest conduct by Members of the Cabinet, and that this was defamatory. He also held that the provisions under which the applicant had been charged (the “criminal defamation provisions”) were constitutional, and thus convicted the applicant.

3 On appeal, the High Court Judge (the “appeal judge”) interpreted the article as referring to the Cabinet, but found that the more natural interpretation of the article was that the Cabinet was responsible for the emergence of serious and substantial corruption by virtue of their incompetence or failures, rather than because they were themselves corrupt. However, he took the view that this meaning was also defamatory, and held that the criminal defamation provisions were constitutional. He thus upheld the applicant’s conviction.

4 The applicant then sought to refer five questions of law of public interest to the Court of Appeal, pursuant to s 397 of the CPC. These five questions were:

Question 1

Whether, for a charge of criminal defamation under section 499 of the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”) and punishable under section 500 of the Penal Code (the “Criminal Defamation Provisions”), the appellate court may convict an accused person of a defamatory meaning not alleged by the Prosecution (“a Different Defamatory Meaning”) without calling the accused person to defend himself against the same.

Question 2

Whether Parliament can be said to have considered whether or not the Criminal Defamation Provisions are “necessary or expedient” derogations from Article 14(1)(a) of the Constitution imposed by Parliament under Article 14(2)(a) of the Constitution when the Criminal Defamation Provisions pre-dated the Constitution.

Question 3

Whether the phrase “necessary or expedient” in Article 14(2)(a) applies to laws providing against defamation.

Question 4

Whether, if the answers to Questions 2 and 3 are in the affirmative, the Criminal Defamation Provisions are “necessary or expedient” derogations from the constitutional right to freedom of speech and expression protected under Article 14(1)(a) of the Constitution.

Question 5

Whether, if Question 2 is answered in the negative, a proportionality analysis can be applied to determine the constitutionality of laws predating the Constitution that restrict the right to freedom of speech and expression.

The court’s ground of decision/ Decision on appeal

5 What the right to fair hearing requires ultimately turns on the circumstances of each case. In the context of defamation, whether a person must be given explicit notice of a defamatory meaning not originally pleaded or put to him would depend on the degree of difference between the original and final meaning, the components of the latter advanced by each party, and the nature of the arguments advanced in respect of these components and the elements of the offence. This was an inherently factual inquiry, not a question of law: at [42]–[44].

6 The appeal judge’s interpretation of the article was a composite of a meaning advanced by the Prosecution, which the applicant had every chance to address, and a meaning advanced by the applicant himself. This being the case, it was difficult to see what prejudice the applicant had suffered as a result his conviction being upheld on the basis of a meaning which differed from that adopted by the trial judge: at [45].

7 The question of whether the phrase “necessary or expedient” applied to the second category of restrictions on the freedom of speech and expression under Article 14(2)(a) of the Constitution had been answered in the negative over 30 years ago in Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR(R) 791 (“Jeyaretnam Joshua Benjamin”). This holding was also correct, as reading the phrase “necessary or expedient” as qualifying both categories of restrictions would be both ungrammatical and irreconcilable with the overall syntax of Article 14(2)(a). Neither counsel nor the court was free to depart from the grammar, syntax or context of an Article of the Constitution, in order to make words mean what they might wish for them to mean. The grammatical as well syntactical approach in the above holding is also wholly consistent with the actual content as well as sense of Article 14(2)(a) itself: at [48], [50]–[58].

8 Jeyaretnam Joshua Benjamin had been concerned with Article 14(2)(a) of the Constitution, while the later decision of Wham Kwok Han Jolovan v Public Prosecutor [2021] 1 SLR 476 had been concerned with Article 14(2)(b). There was therefore no conflict of judicial authority giving rise to any question of law of public interest: at [49].

9 Any dissatisfaction with the law did not make the law unclear or unsettled, and was not relevant in the context of an application for leave to refer questions of law to the CA. While it might constitute the basis for academic commentary or catalyse legal reform, such reform was a matter for Parliament, and beyond the purview of the courts: at [59]–[60].

10 There was no basis for suggesting that laws on criminal defamation had to be separately passed by Parliament independent of the operation of Article 162 of the Constitution. This issue had been settled in Review Publishing Co Ltd and another v Lee Hsien Loong and another appeal [2010] 1 SLR 52, whose characterisation of Article 162 as a “law-enacting provision” was entirely consistent with the subsequent characterisation of Article 162 as a “transitional provision which specifically deals with existing laws” in Tan Eng Hong v Attorney-General [2012] 4 SLR 476. This thus disposed of Question 2: at [61].

11 Once Questions 2 and 3 had been disposed of, Questions 4 and 5 fell away as well: at [62].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

What was Xu Yuanchen v Public Prosecutor [2024] SGCA 17 about?

It was a Singapore Court of Appeal decision dated 20 May 2024 in Criminal Motion No 28 of 2023, addressing an application for a criminal reference arising from matters of criminal defamation and the constitutional freedom of expression. Andrew Phang Boon Leong SJ delivered the grounds of decision.

What did the court say about criminal references in [2024] SGCA 17?

The Court of Appeal stated that criminal references are by their nature rare and rarely succeed in obtaining leave. Citing Mohammad Faizal and Kho Jabing, it warned that liberally construing s 397 of the Criminal Procedure Code would undermine the one-tier appeal system and finality.

Statutes Cited

Computer Misuse Act (Cap 50A) Cases on this Act →

s 3(1)

Criminal Procedure Code (Cap 68) Cases on this Act →

s 397

Penal Code (Cap 224) Cases on this Act →

s 499 s 500

Prevention of Corruption Act (Cap 241) Cases on this Act →

s 6

Public Order Act

s 16(1)(a)

Cases Cited (31)

SG (4)

[2008] SGHC 199 [2012] SGCA 60 [2015] SGCA 67 [2022] SGMC 22

SLR (25)

[1990] 1 SLR(R) 337 [1992] 1 SLR(R) 791 [2006] 1 SLR(R) 582 [2010] 1 SLR 52 [2011] 3 SLR 859 [2012] 4 SLR 476 [2013] 2 SLR 141 [2013] 4 SLR 1116 [2014] 3 SLR 750 [2014] 4 SLR 600 [2015] 1 SLR 114 [2016] 1 SLR 992 [2016] 3 SLR 135 [2016] 4 SLR 716 [2017] 2 SLR 1130 [2018] 1 SLR 659 [2020] 1 SLR 486 [2020] 1 SLR 695 [2020] 3 SLR 446 [2021] 1 SLR 476 [2021] 2 SLR 1358 [2021] 2 SLR 308 [2022] 1 SLR 1033 [2023] 3 SLR 705 [2023] 5 SLR 1210

UK (1)

[2014] 3 WLR 1081

MY (1)

[1982] 1 MLJ 139