Terry Xu served jail term that became a fine on appeal. Apex court clarifies what should happen in similar cases

SINGAPORE: The apex court on Tuesday (Oct 29) resolved a conundrum that was caused by alternative news site editor Terry Xu’s criminal defamation case, where he served a sentence of three weeks’ jail that became a fine of S$8,000 (US$6,000) on appeal.
The prosecution referred the issue to the Court of Appeal, asking what should happen in such a case and if the three weeks’ jail Mr Xu previously served could satisfy the two weeks’ jail in default of the new sentence of a S$8,000 fine.
In a written judgment, Chief Justice Sundaresh Menon, Justice Tay Yong Kwang and Senior Judge Andrew Phang said the three weeks’ jail originally served cannot satisfy the two weeks’ jail in default of the S$8,000 fine that was imposed on appeal.
In such cases, they said, the appellate court should decline to interfere with the sentence originally imposed, on the basis that the jail term has already been served.
This is even if the appellate court holds the view that a different sentence would have been appropriate.
Mr Xu, the chief editor of The Online Citizen, was sentenced to three weeks’ jail by a district court in April 2022 for defaming members of the Cabinet of Singapore.
He did this by approving the publication of a letter in 2018 that alleged “corruption at the highest echelons”.
Mr Xu chose to serve his jail term and lodge an appeal, but not apply for a stay of his sentence while the appeal was pending.
In May 2023, his appeal was heard by the High Court and the jail term changed to a fine of S$8,000 or two weeks’ jail if he did not pay the fine.
By then, Mr Xu had finished serving his three-week sentence and gone to Taiwan.
The prosecution then applied to refer a question of law of public interest to the Court of Appeal.
Their question was: “Where an offender convicted of an offence is sentenced to imprisonment, and elects to serve such imprisonment term and not apply for a stay of execution of the sentence pending appeal, and the sentence is subsequently varied on appeal to a fine, can the imprisonment term imposed in default of the payment of the fine be satisfied by the imprisonment term that was earlier served?”
Mr Xu, who has relocated to Taiwan, was given the option of attending proceedings by Zoom, but he chose not to do so.
Delivering the judgment of the court, Justice Tay said the answer to the prosecution’s question was no.
Mr Xu’s lawyer, Mr Remy Choo, said he had advised Mr Xu that if his sentence were varied on appeal, it may end up prejudicing him if he began serving his sentence before the appeal was heard.
However, Mr Xu wanted to “serve and get his sentence over with”, said Mr Choo.
The prosecution acknowledged the potential for unfairness if Mr Xu were to pay the fine or serve another two weeks’ jail despite having finished three weeks in jail.
They said it was open to the Court of Appeal to set aside the fine imposed by the High Court and substitute it with a short jail term and backdate it to the date Mr Xu began serving the three weeks’ jail.
Mr Xu’s lawyer emphasised that he was not contending that Mr Xu was unable to pay the fine. Instead, he was highlighting that Mr Xu had already been punished after serving the original jail term.
The Court of Appeal noted that Mr Xu had appealed against both conviction and sentence the day after the original sentence was pronounced, sought an entirely different type of sentence, and yet decided not to seek a stay of execution of the jail term pending appeal.
Justice Tay noted that Mr Xu’s co-accused was in fact granted bail pending appeal.
“If (Mr Xu) was unable to afford the bail offered or to fulfil the conditions imposed, he could have applied for a reduction in the bail or a variation of its terms,” said Justice Tay.
“Alternatively, he could have asked for an early date for his appeal to be heard. However, this was not the case. On his own volition, he chose to serve his sentence immediately so as to facilitate his relocation to Taiwan. The choice was entirely his and he has to accept the consequences of his choice.”
He said the High Court judge who heard the appeal should not have set aside the original jail term and substituted it with a fine.
Instead, the High Court judge should have declined to interfere with the sentence imposed by the district judge and dismissed the appeal against sentence on top of dismissing the appeal against conviction.