SINGAPORE — Terry Xu had decided to not subpoena Lee Hsien Yang and discontinue with third party proceedings because he knew that Prime Minister Lee Hsien Loong’s younger brother could not prove the allegations repeated by Xu, PM Lee’s lawyer charged on Wednesday (2 December).
Senior Counsel Davinder Singh pointed out in court that Xu had lunch with Hsien Yang and his wife Lee Suet Fern on 4 November, hours before Xu sent a letter to the High Court to discontinue with third party proceedings, which would have involved Hsien Yang and his sister Dr Lee Wei Ling.
Xu, 38, chief editor of socio-political website The Online Citizen, is being sued by PM Lee for libel over an article posted on his website on 15 August 2019. The article titled “PM Lee’s wife, Ho Ching weirdly shares article on cutting ties with family members” was written by a staff writer under Xu’s instruction.
In the article, Xu repeated allegations that were first publicised by Hsien Yang and Dr Lee from 14 June 2017. They have accused PM Lee of misleading their late father Lee Kuan Yew into believing that his property at 38 Oxley Road had been gazetted.
After legal action was taken by PM Lee against him, Xu initiated third party proceedings, which would have involved calling the two younger Lee siblings to testify, as part of his defence.
But Xu later decided to drop the proceedings and sent a letter to the High Court on 4 November informing the court of his decision.
Referring to Xu’s lunch meeting with Hsien Yang and his wife earlier that day, Singh argued that something might have transpired during the meeting that led to Xu dropping the proceedings, which he initiated on 26 September last year.
He pointed out that Xu’s original defence had stated that the “truth of the allegation lies within the knowledge of (Dr Lee and Hsien Yang)” and that Xu reserved the right to cross-examine the Lees to provide more information.
Singh then asked Xu, “You intended to have (Dr Lee and Hsien Yang) come to court to speak to these matters correct?” Xu agreed and later acknowledged that he could have called the siblings as witnesses.
The lawyer said, “You would have wanted to call (Hsien Yang) since you told us earlier that the siblings would know what happened and you didn’t.”
Xu replied, “Before I got hold of the documents from the disciplinary tribunal, yes”, referring to the disciplinary tribunal which was convened against Hsien Yang’s wife Lee Suet Fern over the handling of the late Lee’s last will.
Singh then asked, “Are you saying that after you got hold of documents you thought it was no longer necessary to call the siblings?” Xu said, “Yes it’s not paramount for me to call them.”
Xu added, “My state of mind on calling of the third party to court was that…the legal advice I got...is that even after filing without entering appearance I could just leave the matter as it is.”
When Justice Audrey Lim asked Xu when he decided that it was no longer necessary to call the siblings, Xu said, “I have never thought of not calling the siblings. It was only the point where I was told by my counsel that I had to make decision on whether or not to drop third party proceedings because I could subpoena them as witness but my intention was to call them as third party where they could be represented by their lawyers.”
However, Singh reiterated that Xu had only changed his mind after having lunch with Hsien Yang and his wife on 4 November.
Xu disagreed, claiming that he had already made his decision earlier when his lawyer, Lim Tean, asked him about his decision following a pre-trial conference (PTC) on 2 November.
At the PTC, the judge asked Lim what his client intended to do with the third party proceedings. Lim replied that it was unlikely the proceedings would continue but that he would give an answer on 4 November.
Putting his case to Xu, Singh said, “I suggest to you that the reason you did not subpoena Hsien Yang and did not proceed with third party proceedings is you had come to understand that the siblings could not establish the truth of the allegations.” Xu disagreed.
Singh then said, “I suggest to you you had come to understand based on these objective facts…that the siblings were unable to prove the truth or to establish the truth of the allegations, and because of that you have...sought to rely on emails that you were not party to instead of calling witnesses, isn’t that right?” Xu also disagreed.
Singh replied, “The fact that you plead defence of justification, in other words to say allegations are true, in circumstances where you could have but chose not to subpoena Hsien Yang shows that you know from your discussions with him that the allegations against the plaintiff are false.”
Xu said, “I disagree and would like to quantify. The first defence I filed was based on documents that were presented from Hsien Yang and Dr Lee on their public Facebook page and I would have relied on them as a source for documents. Following the disciplinary tribunal (being) made public, these documents were tendered and not disputed by the plaintiff and siblings so therefore those were more reliable than what the siblings presented in public.”
Xu later claimed that when he was unrepresented, he had tried to apply for the third party proceedings but a court system to facilitate the application did not work.
When Justice Lim asked Xu if he was saying there had been a technical issue, Xu said “not really”.
Asked to elaborate, Xu said it was too late to proceed when the matter was raised to him in October. “It was very close to the hearing date and I was advised it was too short to proceed on.”
Singh pointed out that the judge had said during the PTC that the case would be moved to a later date if there were third party proceedings.
The matter will resume on Thursday morning with a closed door hearing on whether the late Lee’s lawyer, Kwa Kim Lee, will be testifying. Xu had served a subpoena on 7 October for Kwa to testify as a defendant witness, while Kwa is applying to have the subpoena set aside.
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