XU YUAN CHEN @ TERRY XU v ATTORNEY-GENERAL

Facts

Xu Yuan Chen @ Terry Xu, the chief editor of The Online Citizen Asia (formerly The Online Citizen, or TOC), appealed against a Correction Direction issued to him under the Protection from Online Falsehoods and Manipulation Act 2019 (POFMA). The Attorney-General was the respondent.

The post concerned an incident on 17 May 2021, when police officers responded to a report that an elderly woman looked lost and homeless and was not wearing a mask at Block 743, Yishun Avenue 5. She could not tell officers where she lived. They reminded her to wear a mask, located her home with help from neighbours, brought her domestic helper to her, and spoke to her daughter-in-law, who said she had dementia. TOC's 2021 posts saying the police had taunted the woman were the subject of an earlier Correction Direction, upheld in The Online Citizen Pte Ltd v Attorney-General [2022] SGHC 177.

On 30 April 2023 the appellant published a Facebook post about the same incident. On 7 May 2023 a Correction Direction identified four false statements: that the police knew the woman was not lost, that the main reason they approached her was her lack of a mask, that an officer lied to her relative that she was lost, and that the relative filed a police report because of that misrepresentation. After the Minister refused to cancel the direction, the appellant appealed under s 17(1) of the POFMA in Originating Application No 572 of 2023.

Issues

1. Whether an adverse inference should be drawn against the respondent for not producing more body-worn camera footage
2. Whether Subject Statements 1, 2 and 4 were true or false
3. Whether the post made or contained Subject Statement 3, and whether that statement was a false statement of fact
4. Whether security for costs should be ordered against the appellant

Holding

The High Court dismissed the appeal and upheld the 7 May 2023 Correction Direction. It found all four subject statements false and held that the appellant failed at the threshold to show a prima facie case for setting the direction aside, and in any event none of the grounds was made out. Earlier, the court had dismissed the respondent's application for security for costs.

Reasoning

On security for costs, it was not disputed that the appellant lived in Taiwan, but an individual appellant under the POFMA Rules may be ordered to pay costs only for abuse of process or for conducting the appeal in an extravagant and unnecessary manner. Bringing an appeal with no reasonable prospect of success was not about how the appeal was conducted, so there was no reasonable prospect of a costs order and security was refused.

The court applied the five-step framework in TOC (CA). No adverse inference arose: all footage of the officers' conversations with the woman had been produced, and the appellant's idea of what other footage might show was speculation.

On Subject Statement 1, the evidence overwhelmingly showed the officers believed she was lost: they were answering a report saying so, repeatedly asked where she lived, sought her relatives and the event log recorded that they could not get a proper answer. The directions she pointed in were not towards her home, and an officer's offhand remark that she was "not lost" was made in context after her helper arrived. On Subject Statement 2, the mask was secondary; officers stopped pressing the point and kept trying to take her home after she wore one.

On Subject Statement 3, the words "it can be argued" went to whether the post contained the statement, not whether it was a statement of fact. Read objectively, an appreciable segment of readers would take the post as saying the officer lied, and the statement was false. On Subject Statement 4, the daughter-in-law's own police report showed she complained because she was unhappy with TOC's article and video, not because of anything the officer told her. The court found that the appellant had a copy of that report and deliberately misrepresented the reason for it.

From the judgment