Withholding Tax Exemption on Payment to Non Residents For Technical Advice, Assistance, etc

The Minister of Finance has granted withholding tax exemption (WHT) on payments to non-residents that fall within Section 4A(i) and (ii) of the Income Tax Act in respect of offshore services via the Income Tax (Exemption) (No. 9) Order 2017.

In effect this reverts to the previous position, such that intellectual property services (such as trade mark, industrial designs and patent registrations) provided and performed from 6 September 2017 by a foreign intellectual property agent outside of Malaysia will be exempt from WHT.

Seminar on GET WIRED! Updates on Tech Laws and Cyber Security (24 Aug 2017)

The Bar Council Information Technology and Cyber Laws Committee is organising a seminar focusing on the important aspects of information technology (“IT”) and cyber law on 24 August 2017.

In this seminar, I will speak on the topic of “Practical Steps in Tracing a Person Online“. I will speak on keyword search investigation, and discovery orders and cases relating to discovery orders against data processors.

The other topics would be “Search and Seizures of Computers — Advising Clients” by Ravin Vello, “Wrap n Snap: Technology IP Mash-up” by Suaran Singh and “Overview of Malaysian Cyber Laws and Latest Updates” by Deepak Pillai.


Click on image to enlarge

You may register for the event at here

LegalHack Series: How to download files from the Malaysian e-Court File System (Phase 2)

In 2016, I posted an article entitled “LegalHack Series: How to download files from the Malaysian Court Online File Search System” (“LegalHack Case Search No. 1“). With the introduction of the new e-Court system (Phase 2), the said search method is no longer usable.

Instead of introducing a new and effective way for users to conduct file search, the new system followed the old method. A user is still required to pay a fee (RM8 and RM12 for a file search in the Subordinate Courts and High Court respectively) and the user is only given 30 minutes to do the search. It is baffling why the Court could not roll out a one-off fee to allow users to download every file instead of forcing them to view them online (ie on their browser). User will have to print the page one by one if they want to have a copy on their computer. This is fine if the document does not have many pages. However, there are a few good features introduced on this new system. For example, the timer will stop if you are loading a page, and Court issued documents (e.g. letters) can also be viewed.

For larger files (20 pages and above), it would be more time efficient to download the entire document rather than printing it one by one. Under the old efiling system, I could download a large amount of files within 30 minutes using the LegalHack Case Search No .1. Nevertheless, it is still possible to download files using Phase 2 but it is slightly more complicated.

I found one possible way (which requires no scripting or complicated software) to do so (click images below to enlarge).

The steps are as follow:-


Step 1: Purchase a Token at https://ecourtservices.kehakiman.gov.my/.


Step 2: Go to the File Search Page. Enter the token code and suit number thereafter.


Step 3: At the Case Information page, click on Document Listing.


Step 4: Choose the file you want and open it. Once the file is open, you will notice that you cannot view the file in full screen mode. To be able to view the file in full screen, right click on the file and choose “View Frame Source”. This is where the technical part begins.


Step 5: At the Source Page, click on the URL and copy it (minus the words “view-source:”). [Edit 22 August 2017: If this method doesn’t work, go straight to Step 6A below]


Step 6: Paste the URL on to a new page OR delete the word “view-source:” and press ENTER. You will be able to get the full view of the file.

Step 6A: If Steps 5 and 6 do not work, go straight to Steps 7 and 8 below. Load every page first and save the page (“Save As”) onto your computer. Then go to the folder “View Document_files” and find the file “Viewer.html”. Copy and paste the file to another folder and open the file. You will get a full view of the file on your computer. Lastly, go to Step 11 below to convert the file into PDF.


Step 7: Each page of the file will load when you scroll to that page. You will need to ensure that every page is full loaded before you do the next step otherwise you will have an empty page.


Step 8: Once all the pages are loaded, right click on the page and click on “Save As”. Save the entire page into a folder of your choice.


Step 9: Once you have saved the page, go to the folder and you will find the file in html and a folder with an identical name as the file. Now, change the folder name to any name (instead of deleting it as deleting it will cause the html file to be deleted too) .

Step 10: Open the html file in your Chrome browser. The reason for changing the folder name earlier is to ensure that the html file does not load the Viewer script on your Chrome. The file you open now will only show some buttons on the top left side and the content of the file in PNG format.

Step 11: Instead of downloading the PNG files one by one and merging them into a single file, you can save them all into one PDF file by printing the page into PDF (Ctrl + P). Choose “Save as PDF” or any PDF maker of your choice (e.g PDF24 or doPDF). Under More Settings, choose Paper Size A1 and Margins: Default. By saving it in this manner, you will have a nicely formatted PDF file. If the file is not properly formatted, you can change the Paper Size and Margins to get the right fit.

Tips:
1. Save all the files you need before converting them to PDF.
2. You may need a slightly powerful computer to convert the files into PDF as some files that you download may be very large. I had a 2 Gigabyte file from a 400 page affidavit. However, you can breakdown the conversion of the files by setting the system to print 50 or less pages per print.

Known Bugs:-
1. The eCourt system timer may reset to 0 while doing a file search. You will have to email the eCourt Helpdesk for assistance otherwise you will should purchase another token.
2. If there are two or more cases which have the same suit number (e.g. in Kuala Lumpur and Selangor Court), you will be automatically directed to one case and you have no option to choose another case.

Bread & Kaya: Are WhatsApp admins going to jail?

Bread & Kaya: Are WhatsApp admins going to jail?

By Foong Cheng Leong | May 02, 2017

– Two key elements in s. 233 are not fulfilled by a group chat admin
– To use s. 114A to attach liability on a group chat admin is stretching s. it too far

I REFER to the recent news reports stating that the Honourable Deputy Communications and Multimedia Minister Jailani Johari announced that group chat admins can be held accountable under the Communications and Multimedia Act 1998 (CMA) if they fail to stop the spread of false news to its members.

With due respect to the Honourable Deputy Ministry, the CMA, in particular s. 233 of the CMA, does not attach any liability to an admin of a group chat admin for spreading “false news”.

For ease of reference, I reproduce s. 233 of the Act:-

233 Improper use of network facilities or network service, etc

(1) A person who-

(a) by means of any network facilities or network service or applications service knowingly-

(ii) initiates the transmission of,

any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or

(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address,

commits an offence.

(2) A person who knowingly-

(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or

(b) permits a network service or applications service under the person’s control to be used for an activity described in paragraph (a),

commits an offence.

(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.

The offence under s. 233(1) of the CMA is committed by a person who uses any network facilities or network service or applications service knowingly makes, creates or solicits and initiates the transmission of an offensive communication with intent to annoy, abuse, threaten or harass another person. Two key elements in s. 233 are not fulfilled by a group chat admin namely “knowingly make or initiates the offensive communication” and “with intent to annoy, abuse, threaten or harass another person”.

As for s. 233(2), liability is only attached to a person who knowingly provide or permits an applications service to provide any obscene communication for commercial purposes. This is also not applicable to the present case.

It is noted that s. 114A of the Evidence Act 1950 provides for three circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her. The relevant section, namely s. 114A(1), states that “A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host , administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved”.

In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content.

To use s. 114A to attach liability on a group chat admin is stretching s. 114A too far. It must be highlighted that s. 114A was introduced to “provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet” (Explanatory Statement of Evidence (Amendment) (No. 2) Bill 2012). Common sense would dictate that a group chat admin is not a publisher of their member’s messages.

In fact, in the Delhi High Court case of Ashish Bhalla vs Suresh Chawdhury & Ors, the Court held that:-

Similarly, I am unable to understand as to how the Administrator of a Group can be held liable for defamation even if any, by the statements made by a member of the Group. To make an Administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation. When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. It is not as if without the Administrator‟s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform

Perhaps the Honourable Deputy Minister should clarify which section in the CMA attaches liability to a group chat admin to avoid further confusion and panic to group chat admins.


First published on Digital News Asia on 2 May 2017.

BFM Podcast: LANDMARK #4: FACEBOOK

Subsequent to my update on the Malaysian 2016 cyberlaw cases, I was interviewed by BFM Radio to talk about general laws applicable to social media in Malaysia on 13 April 2017. I also covered the rules applicable to your digital data after your death and how to manage them in preparation of your death.


Who owns the pictures you post on Facebook? Can comments you post on Facebook be used against you in court, even after it is deleted? How is defamation defined on social media? On this episode of Landmark, a series exploring how the law shapes society and vice versa, lawyer Foong Cheng Leong talks us through recent rulings involving the social media platform and explains where the law currently stands when it comes to Facebook.

Your browser does not support native audio, but you can download this MP3 to listen on your device.

Feedback to the proposed Personal Data Protection (Transfer Of Personal Data To Places Outside Malaysia) Order 2017

The Malaysian Personal Data Protection Commissioner (Commissioner) has published the Public Consultation Paper (PCP) No. 1/2017 (click to download) entitled Personal Data Protection (Transfer Of Personal Data To Places Outside Malaysia) Order 2017 (“Order”). The public consultation is intended to solicit feedback from data users and/or relevant parties pertaining to the whitelist places for transfer of personal data outside Malaysia. This step is in line with the requirements of subsection 129(1) of the Personal Data Protection Act 2010 [Act 709]. The Order is a ‘living document’ in which, as and when required; addition of places to the list will be done accordingly. Among the criteria considered by the Commissioner in preparing a list of those places are:

i. Places that have comprehensive data protection law(can be from a single comprehensive personal data protection legislation or otherwise a combination of several laws and regulations in that place);

ii. Places that have no comprehensive data protection law but are subjected to binding commitments(multilateral/bilateral agreements and others);

iii. Places that have no data protection law but have a code of practice or national co-regulatory mechanisms.

The Order has proposed the following places to be in the “whitelist places”:-

(a) European Economic Area (EEA) member countries
(b) United Kingdom
(c) The United States of America
(d) Canada
(e) Switzerland
(f) New Zealand
(g) Argentina
(h) Uruguay
(i) Andorra
(j) Faeroe Islands
(k) Guernsey
(l) Israel
(m) Isle of Man
(n) Jersey
(o) Australia
(p) Japan
(q) Korea
(r) China
(s) Hong Kong
(t) Taiwan
(u) Singapore
(v) The Philippines
(w) Dubai International Financial Centre (DIFC)

The deadline for sending feedback is on the 4th of May 2017 (Thursday). For more details, please click here.

CCTVs in cinema are legal, but…

I was quoted in an article entitled “CCTVs in cinema are legal, but…” the in Free Malaysia Today news portal on 21 March 2017. It was reported that Kuala Terengganu has finally had its first cinema in 20 years. However, CCTV cameras are installed in each of the cinema hall. The cameras will broadcast live the footage from the halls on a big screen placed at the cinema’s lobby.

The relevant extract from my statement is as follow:-

PETALING JAYA: If you’re a cinema owner and you’re subjecting your patrons to CCTV monitoring, you must get their consent before publicly displaying the footage.

Otherwise, you would run afoul of the Personal Data Protection Act (PDPA), said lawyer Foong Cheng Leong in a comment on Lotus Five Star’s decision to monitor activities in the viewing hall of its cinema in Kuala Terengganu.
He said the monitoring was legal but the public display of footage required the consent of those affected.
“As long as people who go to the cinema know that they will be recorded and the recording will be publicly displayed, and they show agreement to this condition by buying tickets, then it’s okay,” he told FMT.

He said the PDPA required a privacy notice to be published to tell moviegoers how the CCTV footage would be used.

Creepshotting

I was quoted in an article entitled “Cheap Shots” by Renyi Lim in ELLE Malaysia (March 2017). The article spoke about the practice of “creep shotting”, the act of taking picture of a person, generally a woman, without his or her knowledge or consent.

I said:-

Unfortunately, creepshotting is not against the law or an invasion of privacy,” explains Foong Cheng Leong, chairperson of the Kuala Lumpur Bar Information Technology Committee. “To be an invasion of privacy, there must be a reasonable expectation of privacy. A person cannot reasonably claim expectation if that person is in a public area, and pictures taken of that person involve parts of his or her body that can be seen by anyone in public, like their face or body.

Notwithstanding the above, creepshotting can be a criminal act if it falls under section 509 of the Penal Code. S 509 of the Penal Code states as follow:-

Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years or with fine or with both.

But it is unlikely to be a criminal act if the shots were taken on a part of a person which can be seen by anyone e.g. a person’s face, body etc.

However, this would be different if that person is constantly harassing the victim e.g. stalking her day to day. If this happens, the victim can consider initiating an action for harassment.

Bread & Kaya: 2016 Cyberlaw cases – Cyber Court, Facebook fights and hacking

SEPT 1, 2016 marks the commencement of Malaysia’s first Cyber Court. Consequently, pending cases relating to cybercrime such as PP v Mohd Zaid bin Ibrahim (for a charge under s. 233 of the Communications and Multimedia Act 1998 for allegedly making an offensive statement while calling for the resignation of Prime Minister Najib Razak) was transferred to the newly established Cyber Court before Kuala Lumpur Sessions Court Judge Tuan Zaman Mohd Noor. Practice Direction No. 5 Year 2016 was subsequently introduced to give a special category for cyber cases for both civil and criminal cases.

2016 saw a drop in civil litigation relating to publications on blogs, Twitter and online forums but civil litigation on Facebook thrived. Facebook became the top platform causing disputes between parties in Malaysia. However, Twitter is still a popular platform for criminal investigations as our Inspector General of Police a.k.a @KBAB51 frequently orders investigations against netizens on Twitter.

There is still no shortage of cases relating to disputes on blogs. In Khairulazwan Bin Harun v Mohd Rafizi Bin Ramli (Kuala Lumpur High Court Civil Suit No: 23NCVC-55-07 /2015), the Plaintiff, Deputy Leader of UMNO Youth Wing, filed an application for leave to initiate a contempt proceeding against the Defendant, Vice-President and Secretary-General of the People’s Justice Party (PKR), for sub judice.

The Defendant had apparently published an article in his blog issues which are pending in the Court. According to the Plaintiff, the contents of the article are such that they interfere with the due administration of justice and attacked the merits of the ongoing suit and cast aspersions on the independence and integrity of the judiciary and judicial process and therefore be an act of contempt.

The learned High Court Judge dismissed the application holding that there is no sub judice. The learned High Court Judge held that the general rule is that the law of contempt cannot be used to curtail public discussion of matters of public importance and public interest albeit that these matters may already be the subject of a court action.

In a case relating to a defamation action by a lawyer against the Defendant who is allegedly the infamous blogger, Papagomo, the High Court had rejected the Plaintiff’s action because he had failed to prove that the Defendant is Papagomo notwithstanding that the Plaintiff had called numerous witnesses to prove the same.

The Plaintiff even called a blogger who had allegedly met Papagomo in an event and had positively identified the Defendant as Papagomo, and also another blogger who had testified that Papagomo is the Defendant. The Court of Appeal ((Dato’ Sukri Bin Haji Mohamed v Wan Muhammad Azri bin Wan Deris (Court of Appeal Civil Appeal No. D-02(NCVC)(W)-783-05/2014)) overruled the High Court on this point and held:-

In our view it is reasonable to infer that in the world of bloggers it is highly probable that a blogger knows the other blogger next to him or her. This probability is real because blogs are circulated in virtual space and they are widely read. It is not something that is unusual or unthinkable that sometimes bloggers do engage in virtual debate or argument and respond to each other over issues which attract public interest such as corruption and misuse of power or position by public officials or public figures

In the same case, it is interesting to note that a witness from the Forensic Legal Department of the Multimedia Commission testified that the Commission monitors blogs and articles published through them; and would investigate any offence under the Communication and Multimedia Act 1998 relating to ‘blog-blog lucah, jelek, mengancam dan sebagainya’ when it received complaint from internet users. He also testified that the Commission has data and information for each blog.

Facebook

In Maricel Cabangon Peralta Perimaloo v Riccardo Rovati & 3 Ors (Kuala Lumpur High Court Suit No. 23VCVC-18-03/2015), the Plaintiff, a former maid of the 1st and 2nd Defendants, sued the Defendants for defamation. The Plaintiff left the employment of the 1st and 2nd Defendants and filed a complaint with the Labour Office at Kuala Lumpur.

The Plaintiff alleged that, among others, the 2nd and 4th Defendant had published defamatory statements on Facebook. However, on the application of the Defendants, the High Court struck out the Plaintiff’s claim against the Defendants on the ground that the statements made were honest, based on facts and raised during a proceeding at the Labour Office at Kuala Lumpur and thus it is protected by absolute privilege and immune from an action for defamation.

In Chan Fei Yu & Yang Lain lwn. Siow Rong Jeing & Yang Lain (Kuala Lumpur High Court Suit No. 23NCVC-12-03/2015), the Plaintiffs sued the Defendants for publishing certain statements on Facebook that allegedly had defamed the Plaintiffs.

The 1st and 3rd Defendant had apparently published the 3rd Defendant’s allegation that the Plaintiffs had been negligent in grooming the former’s dog until it suffered injury. Further in this case, the Plaintiffs initiated contempt proceeding against the 3rd Defendant for allegedly providing fake residential addresses in his affidavits filed in Court.

The 3rd Defendant explained that one of the addresses was his former addresses whereas the other address is his mother’s residence. Fortunately for the 3rd Defendant, the Court accepted his explanation and held that the 3rd Defendant did not provide fake residential addresses to avoid service of the legal papers and interfere with or impede the administration of justice.

In Wedding Galore Sdn Bhd v. Rasidah Ahmad [2016] 6 CLJ 621, the High Court affirmed the Sessions Court’s decision in granting a public apology on Facebook and general damages of RM10,000 after the Defendant had taken the Plaintiff’s photographs from her Facebook account and published them in sales brochures for use at a wedding carnival without permission.

In Lim Yun Min & 7 Ors v Ng Han Seng & Anor (Shah Alam Sessions Court Suit No. B53F-7-03/2016), the Plaintiffs sued the Defendants for allegedly defaming them on Facebook. The Defendants applied to strike out the Plaintiffs’ claim for failing to:-

(1) state the Facebook URL address where the statements were published;

(2) state the exact time of publication of the statements; and

(3) identify or name the parties whom the Defendants are alleged to have published the statements and the Plaintiffs did not give the particulars of those parties who have read the alleged Impugned Statement.

The Plaintiffs have also failed to plead the statements in original language i.e Chinese.

The Sessions Court held that the Plaintiffs have failed to provide complete the Facebook web addresses and the identity of the parties that have read the statements. Instead of striking out the case, the Court used its discretion to order the Plaintiffs to amend their pleadings with cost payable to the Defendants.

In GGC v CCC & Anor (Kuala Lumpur High Court Divorce Petition No: 33-1415-08/2013), the Petitioner Wife (PW) sought damages from a lady (CoR) for allegedly committed adultery with her husband (RH). To prove adultery, PW relied on CoR’s Facebook postings to prove that RH and CoR had gone for a trip to various places. The Court stated:-

[84] The PW alluded to the CoR’s Facebook comments, status and photos uploaded by Co-R Pangkor Laut Resort, Maxim Hotel stay. However, there is no name or image of RH that appeared in any of these photos referred by PW. It was only by inference from some of the comments made by CoR’s friend that PW alleged RH was in those photos with the CoR. Nevertheless, none of these people who commented on the Facebook had been called by PW as witness. These comments or observation by public are therefore merely hearsay and cannot constitute evidence that this Court may rely on with respect to its truth.

[100] It is also in keeping with the times. In this day and age where with increased mobility, both physical and electronic and the easy access to new-fangled means of communication via the Internet, Wechat, WhatsApp, Skype, Blogs, Twitter and the like, there has been ushered in a whole new world of unlimited opportunities to communicate with anyone anywhere at anytime. With certain communication between the sexes, chemistry develops and opportunities to meet abound. While private investigators may be hired to track and collect evidence of a spouse’s infidelity, logistical costs have become prohibitive for many who have every reason to suspect a spouse is cheating on him or her but always a challenge to prove adultery. The time is both right and ripe for a realignment of the standard of proof even in adultery in a divorce petition to that of on a balance of probabilities.

Last year, I reported in Rina Simanjuntak v PP (Criminal Appeal No: P-05-256-09/2014), a Yahoo Messenger Chat log saved the life of Rina Simanjuntak who had been sentenced to death by the High Court for drug trafficking. In 2016, Facebook chat messages saved the life of a German by the name of Rudolf Tschernezow who was charged with drug trafficking. The High Court in PP v. Rudolf Tschernezow [2016] 1 LNS 654 held the Accused managed to prove that he is an innocent carrier using those messages [Update: Court of Appeal in PP v Rudolf Tschernezow (Criminal Appeal No J-05(LB)-345-12/2015) overturned the High Court’s decision).

In Norfariza Binti Harun v Dr Yusaidah Binti Yusof & Anor (Negeri Sembilan Sessions Court Civil Suit No. A53KP-04-11/2014), the Plaintiff sued the 1st Defendant for medical negligence while treating the Plaintiff. In support of the Plaintiff’s case, the Plaintiff had relied on various medical articles obtained from websites such as Healthline.com, webMD, Medicine Net.Com. However, the Court held that Plaintiff’s reliance on various websites to establish the effects of medications, misdiagnosis of Plaintiff’s symptoms and the prescriptions given is insufficient to establish the Plaintiff’s case without calling any medical expert. The Plaintiff’s case was therefore dismissed.

In Reka Setia Playground Sdn. Bhd. v Siow Wee Hong (Berniaga sebagai AZ Playground Builder) (Shah Alam High Court Suit No. 22NCVC-553-10/2015), the Plaintiff sued for copyright infringement over certain designs and works. In attempting to prove that the Plaintiff has no valid copyright claim over the design and works, the Defendant referred to a Prior Art Search Report.

The said Report utilised, among others, Google Search Results as a gauge or yard stick to determine whether or not there are contradicting copyright claims. The Court held that Google cannot be a credible copyright database. Google is merely an internet search engine and cannot be a determinant of any copyright claims or contradictions. Therefore, this Court held that it will not take into account any portions of the Search Report pertaining to Google Search Results.

On a slightly technical side, in the case of Wing Fah Enterprise Sdn Bhd v Matsushita Electronic Components (M) Sdn Bhd (Shah Alam High Court Suit No. 22-753-2005), the High Court held that s. 90A of the Evidence Act 1950 was not enacted to allow admissibility of documents downloaded from the internet. The High Court said that the meaning of computer producing the document must be a computer in the course of its ordinary use.

This refers to dedicated computers kept in organisations to do a certain function of general purport. This provision would cover for instance computers producing receipts on payments. In the present case the Plaintiff’s computers keeping details of accounts for instance would be covered by this provision. The production of the account sheets of the company from this computer would therefore be admissible under this provision. However information downloaded from the internet in no way form the ordinary use for the Plaintiff’s computers.

Computer Crimes Act 1997

Before 2016, it’s a rarity to find reported judgments relating to the Computer Crimes Act 1997. However, three (3) judgments relating to the same were published by the High Court in 2016.

In Basheer Ahmad Maula Sahul Hameed & Anor v Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42(S)-44-06/2015), the High Court dismissed the appeal by the accused over their sentencing for, among others, stealing from the accounts of a few victims from the MH370 air flight tragedy using their ATM cards and online banking.

In Roslan bin Mohamad Som & Anor v Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42(S)-69- 05/2014 and 42(S)–131–11/2014), the 2nd accused’s appeal over his conviction for making unauthorised modification to Tabung Haji’s database by inserting certain information therein was dismissed by the High Court.

However, in Pendakwa Raya v Vishnu Devarajan (Kuala Lumpur High Court Criminal Appeal No. 42(ORS)-60-07/2015), it was reported that the accused’s 36 charges under the Computer Crimes Act 1997 were struck out by the Sessions Court and subsequently upheld by the High Court as the charges failed to state the physical location where the alleged crime had happened. The High Court also held that an internet protocol (IP) address is not an address where a crime had happened in a charge sheet.

Communications and Multimedia Act 1998 (CMA)

Numerous netizens were subject to an investigation under s. 233 of the CMA (“s. 233”). Notable, a 19 year old boy, Muhammad Amirul Azwan Mohd Shakri, was given the maximum sentence of 1 year for a charge under s. 233 for insulting the Crown Prince of Johor on Facebook notwithstanding that he had pleaded guilty and was unrepresented.

The sentence was subsequently substituted the jail term and sent Amirul to the correction school. In another case, A 76 year old man who goes by the name of “Pa Ya” was arrested and remanded for 3 days for uploading an allegedly insulting photo of Prime Minister Najib Razak. Activist Fahmi Reza was also charged under s. 233 for posting an edited image of Prime Minister Najib Razak on his Instagram account.

On the independent media side, the access to The Malaysian Insider had been blocked pursuant to the direction of the Malaysia Communications and Multimedia Commission (MCMC) vide its powers under s. 263 (2) of the CMA. The MCMC frequently uses the said s. 263 to direct its licensees (i.e. Internet Service Providers) to deny access of netizens to websites to prevent the commission or attempted commission of an offence in Malaysia.

Further, Malaysiakini’s editor-in-chief Steven Gan and KiniTV Sdn Bhd were also charged under s. 233 for airing an allegedly offensive video on KiniTV’s website. The alleged offensive video was of a press conference held by Khairuddin Abu Hassan titled “Khairuddin: Apandi Ali is not fit to be AG and he should quit immediately. Steven Gan was also charged on his capacity as a director of KiniTV Sdn Bhd pursuant to s. 244 of the CMA.

Others

In an interesting case regarding Groupon (an e-commerce marketplace), a user of Groupon Malaysia purchased a tour package vide its platform from one of Groupon’s merchant. However, the said merchant allegedly cancelled the tour and no refund was made by the said merchant to the user. Groupon, however, made a refund to the user. Dissatisfied, the user demanded that Groupon bear the payment he made to Groupon’s merchant.

Groupon rejected the demand and the user made a complaint to the Consumer Tribunal. The Consumer Tribunal held in favour of the user and held Groupon liable for the payment to its merchant. Groupon thereafter filed an application for judicial review against the Consumer Tribunal’s decision in Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor (Kuala Lumpur High Court Judicial Review Application No. 25-332-12/2015)

In the said application, Groupon stated that, among others, that it is merely an online marketing platform and never an agent of the travel company and pointed out that this was highlighted in its terms and conditions – as agreed by the user.

According to the Court’s records, the High Court overturned the Consumer Tribunal’s decision. Unfortunately, no grounds of judgment had been published. But one can assume that an online marketing platform is not necessarily liable for its merchants’ actions.

There are some interesting developments in the realm of cyber and electronic world not seen in Malaysia.

In Lancashire County Council v M & Ors (Rev 1) [2016] EWFC 9, Mr Justice Peter Jackson and published online is thought to be the first in English legal history to incorporate an emoji, or web symbol, to explain a point of evidence. In paragraph 27(13), the Court said:-

In the United States case of In the Matter of the Search of an Apple iPhone Seized during the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203 (popularly known as the Apple v. FBI case), the FBI requested the Court to compel Apple, Inc to assist the FBI to access an Apple phone found in a car of one of the San Bernardino shooters.

The FBI had requested Apple, Inc to remove some features from its phone such as the auto erase function, the requirement for passwords to be entered manually and any software-invoked delay-upon-failure functions. Apple, Inc contested the request heavily. However, the FBI dropped its case after it found other ways to access the phone.

Closing

We can expect that amendments to the Communications and Multimedia Act 1998 to be introduced this year. The amendments of the CMA were supposed to be tabled in the 2016 Dewan Rakyat sitting but it never came to light. It is still unclear what are the exact proposed changes. However, we do know that the punishment for contravention of s. 233 will be increased.

There should also be an increase of harassment case be brought to Court with the advent of tort of harassment (Mohd Ridzwan bin Abdul Razak v Asmah Binti HJ. Mohd Nor (Federal Court Civil Appeal No 01(f)-13-06/2013 (W)). One may bring a person to Court with a help of a lawyer without relying on the authorities.

The cost of hiring a lawyer should now decrease with the advent of many new start-up law firms in Malaysia. Furthermore, there are now online platforms that can match lawyers and members of public such as BurgieLaw and CanLaw.

First published on Digital News Asia on 2 March 2017 (Part 1) and 3 March 2017 (Part 2)

Kuala Lumpur Bar Committee 2017/2018

I am pleased to announce that I have been re-elected as a committee member of the Kuala Lumpur Bar Committee for the year 2017/2018.

I have also been re-appointed to chair the Kuala Lumpur Information Technology and Publication Committee. This Committee will continue its development of the Kuala Lumpur Bar website, App and membership management system.

The full list of office-bearers of the Kuala Lumpur Bar Committee for 2017/18 are as follows:-

Chairman :
Goh Siu Lin

Committee members :
Alvin Oh Seong Yew
Atan Mustaffa
Chen Yu Szen
Foong Cheng Leong
Jacky Loi
Muhendaran Suppiah
New Sin Yew
Nik Elin Nik Rashid
Shashi Devan
Vivek Sukumaran

Representative to the Bar Council: Khaizan Sharizad binti Ab Razak (Sherrie)

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