From The Legal Battles With PM Lee & Ordinary Citizens, Can We Still Trust The AGC?

Dear Editorial Team,

I refer to the posting by an angry citizen regarding ongoing defamation trials and suits to defend the embattled reputation of the PM and his fledging government.

I believe there maybe a misconception from the citizen between civil suits and criminal charges. A civil suit is undertaken when an individual feels aggrieved over an action perpetuated by other individuals whom he/she feels, has allegedly harmed his/her reputation and injured the “good standing”. He/she then commences a civil suit to restore that “damaged” image by establishing through the Courts, the false or misleading act by the defendant(s). The State is not involved as it is not an offence against the State and there is usually no imprisonment, only monetary awards depending on the “importance” of the plaintiff(s).

Now, the ball game is changed when criminal charges are filed on behalf of the State by the AGC for offences that are contained in the Penal Code Cap 224. Here, the AGC cannot act maliciously by choosing who to charge and who to let off for infringing the same class of offence(s). Justice Ang Cheng Hock for example, in grounds released in his decision to dismiss Mr Lim Tean’s application for judicial review against police actions said: “The AG’s discretion to prosecute, even for criminal prosecutions the AG carries out, is subject to to judicial review in only two situations, where prosecutorial power is abused and exercised in bad faith for an extraneous purpose, and where its exercise contravenes constitutional protections and rights”.

While the PM can choose who to sue and who not to in his private capacity, the AGC cannot! In choosing to charge Terry Xu and Yours Sincerely for criminal defamation and not the Lee siblings, the AGC has acted in bad faith for an extraneous purpose and its exercise thus contravenes constitutional protections and rights.

I have through Counsel M.Ravi, filed 2 applications to review AGC’s undue actions and both were dismissed but not without nuggets in them. Judge Christopher Tan before his abrupt removal in our case said the following for the first trench of our arguments: “By prosecuting Mr De Costa and not the Lee siblings, which have made fundamentally similar allegations, if not more severe ones than Mr De Costa, the Attorney-General has offended Mr De Costa’s right to equality before the law, as enshrined in Article 12(1) of the Constitution”… In delivering his decision, District Judge Tan said that if the question is asking whether a harsher prosecutorial treatment of an offender, as compared to another person with a similar or higher culpability, infringes Article 12(1), then it could “conceivably be a question” as to the effect of a constitutional provision. “If so, it could conceivably satisfy the first step of the test,” said the judge. “I will give the defense that.”

When we proceeded to the High Court before Justice Aedit Adullah in which senior counsel Mohd Faizal made disparaging insinuations against Counsel and I, the Justice said: “While the application lacks merit, this does not necessarily mean that the application is frivolous, or for collateral purpose or to delay,” he said… Added the judge, “Here, there has been no lack of expedition, unreasonableness, impropriety or lack of reasonable competence in conducting the present proceedings. In addition, judicial review and public law proceedings protect the public interest and seek to hold to account those who exercise powers, and should not be impeded by the threat of adverse cost orders.”

In the first run of my four day trial from 26-27 and 29-30 Oct 2020, it was revealed that there was no police report filed against myself by any IMDA officials or felon Sim Wee Lee and that police had put up a false statement on 12 Dec 2018 stating so. The truth of the matter is that police officer DSP Jonathan Au Yong on his own accord, filed a report, directed investigations and ordered our arrests on 20 Nov and 12 Dec 2018 respectively. He was only short of playing judge for the case.

The trial is not without its vast controversies too. Counsel M.Ravi had protested the unfair, bias treatment rendered to us when he was on several occasions, prevented from putting forth key questions to DSP Au Yong who had filed the report if he similarly felt that the Lee Siblings’ statement of “hijacking state organs for personal goals” was of cause for concern to him as well?

In the course of proceedings, AGC had also tried to falsely establish that I utilized Sim Wee Lee’s messenger to communicate with a fellow Jewish congregant when Sim himself did not deny knowing her through the course of his work. DPP Senthilkumaran Sabapathy is therefore, treading along dangerous lines of racism by releasing only half threads to the Court that portray “islamophobia”. This can cause Antisemitism to run rampant on our streets if not handled properly. All these just to secure a conviction for enemies of the State.

If we accept such decadence in our public service, then we will have to pay for the choices we make today for generations to come. Can we still trust the watchers who watch over us to be intact, impartial and of integrity? I think Mr LHY and wife has the answers to these and our other burning questions.

The law is not a moral compass, the people who hid Anne Frank were breaking the law and those who killed her, were following it!

Dan De Costa

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