In an unsurprising turn of events, The Online Citizen's Terry Xu had decided to not subpoena Lee Hsien Yang and Dr Lee Wei Ling as part of his legal defence, despite claiming previously that he would do so.

Xu had applied last September to bring Prime Minister Lee Hsien Loong's siblings Hsien Yang and Dr Ling into the defamation suit filed by the PM, with the intention of having both of them bear damages if he was found to be guilty of defamation.

Xu's private lunch meeting with Lee Hsien Yang and Lee Suet Fern

According to PM Lee's lawyer Senior Counsel Davinder Singh, Xu had a private lunch meeting with Hsien Yang and his wife Lee Suet Fern on November 4, 2020.

On the same day, Xu sent a letter to the High Court informing of his decision to drop third party proceedings, which essentially meant that both Hsien Yang and Dr Ling did not have to testify in court.

Based on Xu's court submissions, he had previously stated that the "truth of the allegation lies within the knowledge of (Dr Ling and Hsien Yang)" and that he reserved the right to cross-examine both siblings to provide more information.

When the presiding judge 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.

Disiplinary Tribunal judgement more reliable than Lee Hsien Yang and Lee Wei Ling's Facebook statements

SC Singh 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.

SC 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.”

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.

SC 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.

SC 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.”

Hsien Yang had previously said during the Disiplinary hearing on his wife's legal misconduct case that statements he made on Facebook need not be accurate because they were not sworn ones. He also admitted that aspects of his posts could be misleading and inaccurate.

Background on defamation trial

The case revolves around claims made by TOC in an article published on Aug 15 last year, titled "PM Lee's wife, Ho Ching weirdly shares article on cutting ties with family members".

The TOC article had commented on how PM Lee's wife, Ms Ho Ching, had shared a link on Facebook to an article titled "Here's why sometimes it is okay to cut ties with toxic family members".

It also referenced a Facebook post that Dr Lee made in May. Mr Lee Hsien Yang had also shared the post by Dr Lee.

In September last year, PM Lee asked TOC to remove the article, along with a Facebook post linking to it, and publish a full and unconditional apology.

His press secretary Chang Li Lin said the allegations in the article and post were libellous and repeated several false allegations against PM Lee that were previously made by his sister.

One such allegation was that PM Lee had misled his father, the late Mr Lee Kuan Yew, into thinking that his 38 Oxley Road property had been gazetted by the Singapore Government, and that it was futile for the founding prime minister to keep his direction to demolish it.

Another allegation was that Mr Lee Kuan Yew removed PM Lee as an executor and trustee of his will after it was revealed to him in late 2013 that the 38 Oxley Road property had in fact not been gazetted.