IN THIS 1/3 of a four-part series, I will speak cyber-crime instances and other cyber offenses.
Communications and Multimedia Act 1998
The established order of Cyber Courts inside the Kuala Lumpur Sessions Court saw the growth of decisions relating to the Communications and Multimedia Act 1998.
In Pendakwa Raya own Dato’ Mohd Zaid Bin Ibrahim (Kuala Lumpur Criminal Sessions Court Case No. Sixty three-003-12/2015), the discovered Sessions Court Judge gave a complete judgment concerning a fee beneath s. 233(1)(a) of the Communications and Multimedia Act 1998.
The accused, a former Minister of Law, became charged for publishing a statement that is offensive in nature on his blog with a reason to annoy another man or woman. The assertion consists of a transcript of the accused’s speech given at a luncheon regarding the behavior of the then Prime Minister Najib Razak.
The learned Sessions Court Judge acquitted the accused at the prosecution stage based totally on the following grounds, amongst others:-
(1) In figuring out whether the item is offensive in nature, the item must be examined as a whole and now not by means of looking in a few paragraphs or words. This is due to the fact the accused was charged for uploading the article and accordingly the whole article is taken into consideration as offensive in character. The prosecutor can’t choose and select the applicable paragraphs or words favorable to them and conclude that the item is offensive in man or woman.
(2) The discovered Sessions Court Judge seemed into the object of the Communications and Multimedia Act 1998 set out in s.3 of the stated actions. One of the objectives of the Act is to sell a civil society wherein information-primarily based services will provide the premise of persevering with enhancements to excellent of work and existence. The learned Sessions Court Judge additionally considered that the said Act addressed the problem of censorship where nothing inside the said Act shall be construed as permitting the censorship of the Internet.
(three) None of the Prosecution’s witnesses said that they located that the entire article is offensive in man or woman. Two (2) of the prosecution’s witnesses referred a part of the item and now not the entire article. In reality, the complainant’s police report towards the accused had only said that the object is seditious in nature which isn’t the same as offensive in man or woman.
(4) Such an article needs to be tested and now not taken without in addition exam without essential thinking. This is one of the objectives that s. 3 of the said Act seeks to obtain. The attitude of receiving information blindly have to be avoided and the new way of life according to the purpose and goal of the stated Act must be promoted.
(five) In respect of the detail “with a purpose” to bother another character, the found out Sessions Court Judge held that that intent has to be proved and no evidence has been adduced to prove the identical. As for the detail “annoy another person”, the found out Sessions Court Judge observed that the complainant did no longer sense aggravated whilst he examine the article. The discovered Sessions Court Judge held that annoyance or anger or dissatisfaction might appear spontaneously whilst the item studies. The found out Sessions Court Judge located that the object is intended for weblog readers to garner support for what it’s far written for i.E. To present help to Prime Minister Dr. Mahathir.
(6) The price is faulty because the prosecution did not country definitely in the fees sheet who is the individual supposed to be aggravated by way of the accused when the article was uploaded. The charge sheet had only said, “with the cause to annoy any other character”. The man or woman within the charge sheet has to be named actually.
(7) The Prosecution ought to have additionally called the person supposed to be aggravated by way of the article to testify whether or not the sufferer felt irritated through the article. Without proof from the victim, the Court is left questioning whether the victim felt aggravated by means of the thing.
In Sivarasa Rasiah v Pendakwa Raya (Kuala Lumpur Criminal Sessions Court Case No. Sixty three-001-04/2016 & 63-002-04/2016, Criminal Application No: sixty four-1/2-07/2016) and Premesh Chandran a/l Jeyachandran v Pendakwa Raya (Kuala Lumpur Criminal Sessions Court Case: WA-sixty four-a hundred and fifty five-12/2017), the 2 accused were charged under s. 233(1) of the Communications and Multimedia Act 1998. They filed an application to refer some constitutional problems to the High Court pursuant to s. 30 of the Courts of Judicature Act 1964 on the ground that s. 233(1) of the Communications and Multimedia Act 1998 is in contravention of Article eight and 10(2)(a) of the Federal Constitution.
The Prosecution raised an initial objection against this application on the floor that s. 233(1) of the Communications and Multimedia Act 1998 is settled and not in contravention of the Federal Constitution. The same Sessions Court Judge disregarded the software on the floor that the case of Nor Hisham Osman v PP [2010] MLJU 1429 has already determined that s. 233(1) of the Communications and Multimedia Act 1998 is affordable and not unconstitutional.
Fortunately for the two accused, the costs had been withdrawn towards them after the alternate of Government after the 14th General Election.
Sedition – Sex bloggers on trial
In Lee May Ling v Public Prosecutor & Another Appeal [2018] 10 CLJ 742, the Appellant, also referred to as Vivian of the Alvivi duo, became observed responsible by means of the Sessions Court for an offense beneath s. 4(1)(c) of the Sedition Act 1948 and sentenced to an imprisonment time period of 5 (5) months and twenty (22) days.
Vivian and her co-accused, Alvin Tan, had published a photograph of themselves with the phrases “Selamat Berbuka Puasa (dengan Bak Kut Teh. Wangi, Anak, meyelerakan!!!) with the Halal brand on the Facebook page “Alvin and Vivian-Alvivi”.
She appealed towards her conviction and sentence. There was also a pass-enchantment by way of the prosecution towards the inadequacy of sentence meted out by the Sessions Court Judge.
The co-accused absconded thru the trial and was absent until the conclusion of the trial.
The High Court dismissed the appeals. The discovered Judge determined that Vivian and Alvin Tan had a commonplace purpose to submit the photograph and that Vivian became a willing participant. Although nobody noticed Alvin or Vivian posting the photo, the learned Judge additionally made an inference from the proof displaying that the photograph turned into stored in Alvin’s notebook and the Facebook web page changed into registered within the name of Alvin and Vivian.
The High Court, however, substituted the sentence of five (five) months and twenty (22) days imprisonment with a first-rate within the sum of RM5,000 in default, imprisonment of six (6) months. The High Court within the same vein brushed off the prosecution’s attraction on the inadequacy of the sentence.
