Pendakwa Raya v Mohd Syafrein Rasid

Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law

I am happy to announce that my book “Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law” is available for pre-order. This is my third book. It started off with a compendium of cases but subsequently evolved into a textbook. It took me about a year to restructure the contents into a textbook.

This book was inspired by the case of PP v Loh Guo Shi [2016] 1 SMC 190. My learned friend, Lim Chi Chau and I represented the accused when he was charged under s. 5 of the Computer Crimes Act 1997. He was accused of deleting his employers’ database. 

When the case came to us, there was no reported case under Computer Crimes Act 1997 nor any local textbooks that could help us in defending his case. All I had was the book Electronic Evidence by Stephen Mason. This book was recommended by Justice Tan Sri Dato’ Mohamad Ariff Yusof (as then he was) when I had a trial before him. 

Fortunately, when I read the documents provided by the prosecution, I saw flaws in the prosecution’s case. One of them was the issue of Internet Protocol (IP) address. I looked at the year of the alleged offence and I realised that the accused was using a Telekom streamyx account. In that year, a streamyx account can be accessed anywhere so long a person has the login and password. During the trial, we got the witness from Telekom Malaysia Berhad to agree with us. There was no evidence that the accused had log on to his account during the time of offence. Further, by reading the log files provided by the prosecution, we discovered that there was a break in the chain of evidence.

The learned Magistrate, Puan Aminahtul Mardiah, acquitted the accused without calling his defence. The High Court had also dismissed the prosecutor’s appeal. The details of this case are also reported in this book. 

I would like to believe that we freed an innocent man by using knowledge beyond the law. By writing this book, I hope to help those who face the same or similar predicament as us. 


As technology evolves at lightning speed and digitalisation spreads across businesses and people’s lives, a new perspective and a new approach is needed to tackle the issues that come along with emerging technologies. It is natural to expect more and more cases relating to cyberlaw and information technology to be filled in court and even more so to expect digital evidence to be tendered in court.

Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law is the only book on cyberlaw and electronic evidence in Malaysia. Carrying more than 200 local cases and some selected foreign cases with commentaries, this publication looks at areas that have evolved in the digital sense such as civil issues like defamation, privacy and copyright. Current and very much relevant issues such as instant messages, social media postings, admissibility of electronic evidence in industrial relation disputes and digital asset cases are also discussed. Chapters have been devoted to legal practice and technology, the digital economy, electronic signature and electronic commerce.

This illuminating text provides valuable guidance in emerging areas of law. Its structure is held together by a carefully crafted set of headings to ensure that the text is easily accessible. The inclusion of references to many previously unreported cases, including some decisions of the Sessions Court, certainly lends depth to the analysis and discussion in this book.

This practical title is useful for litigators who are involved in matters concerning electronic evidence, information technology and cyberlaw and will be a valuable guide through its carefully structured commentary and insightful analysis.


  1. Civil Matters
  2. Cybercrime
  3. Admissibility of Computer-Generated Documents
  4. Presumption of Fact in Publication
  5. Instant Messages, Social Media Postings & Other Electronic Evidence
  6. Electronic Evidence in Industrial Relation Disputes
  7. Electronic Evidence in Family Disputes
  8. Discovery
  9. “.MY” Domain Names
  10. Legal Practice and Technology
  11. Digital Economy
  12. Electronic Commercial Transactions
  13. Electronic and Digital Signatures
  14. Digital Assets
  15. E-Commerce

You may purchase the book at Sweet & Maxwell’s website or any selected book stores.

Bread & Kaya: 2017 Cyberlaw Cases – WhatsApp Messages and Customs TAP

By Foong Cheng Leong
Mar 26, 2018

Over 50 cyber related cases files in 2017 in Kuala Lumpur High Court

2017 had an interesting array of cyber related issues and laws. Facebook and other electronic platform defamation cases have become a norm. In the Kuala Lumpur High Court itself, there were 50 over cyber related tort cases filed in 2017. Many of them were filed by politicians against other parties including politicians and activists. Some were also filed by companies against individuals who had made disparaging remarks against them.

Interestingly, a defamation case was brought up because of certain defamatory statement via an office intranet.

We also saw how viral contents are treated in Court. Can a Judge rely on a viral video downloaded off the internet as evidence?

Cryptocurrency was one of the biggest news in 2017. Bitcoin shot up to almost US$19,800 (RM77,500) in December 2017. We saw one of the early Bitcoin disputes in one Singapore case. Bank Negara Malaysia issued an exposure draft by the name of Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) – Digital Currencies (Sector 6). The document outlines the proposed requirements and standards that a digital currency exchanger must carry out as reporting institutions. Notably, Bank Negara said cryptocurrency is not a legal tender in Malaysia.

A driver was reportedly successful in crowdfunding her legal fee of US$15,333 (RM60,000) through Facebook, among others. Sam Ke Ting was charged with dangerous and reckless driving after she had allegedly ploughed into a group of cyclists, killing eight and injuring eight others. The cyclists, aged 13 to 17, were believed to have been blocking the road at around 3am [Update: On 28 October 2019, the Johor Bahru Magistrate Court acquitted and discharged Sam Ke Ting without calling for her defence after the Court held that the prosecution failed to prove a prima facie case].

These and quite a few others, are notable Malaysian cyberlaw and electronic evidence cases (and some from other countries too) from 2017 that I will summarise over the next three days as part of my yearly tradition of what happened in the preceding year.

WhatApp messages, as much as it brings good to people, it also brought calamity. In Pendakwa Raya v Subbarau @ Kamalanathan (Court of Appeal Criminal Appeal No. N-06B-55-09/2016), the Respondent was charged in the Sessions Court under s. 8(1)(c)(iii) of the Official Secrets Act 1972 (OSA 1972) with having possession in his Samsung mobile phone soft copies of 2014 UPSR examination papers.

It is noted that no 2014 UPSR examination papers were found in the said Samsung mobile phone. However, the mobile phone of one arrested person by the name of Prem Kumar contains the said 2014 UPSR examination papers. The said 2014 UPSR examination papers were sent by the accused’s telephone to Prem Kumar’s WhatsApp account.

Evidence by the Communications and Multimedia Commission showed that the 2014 UPSR examination papers found in Prem Kumar’s mobile phone came from the respondent’s mobile phone. The witness from the Communications and Multimedia Commission explained that the fact that none of the images were found in the respondent’s handphone could be due to the images being deleted and thereafter overridden so that there is nothing left to extract in the handphone. Nonetheless, the Prosecutor argued that evidence clearly shows that the UPSR examination papers came from one source i.e. the respondent’s handphone.

Instead of dealing with the issue of electronic evidence, the Court of Appeal held that only real issue before the Court relates to the question of whether the UPSR examination papers are official secret.

In Pendakwa Raya v Mohd Syafrein Rasid [2015] 1 LNS 943, the accused was charged under Section 130J of the Penal Code for attempting to support the Islamic State and attempted to be a member of the same.

It was revealed in this case that the accused was influenced by what he saw about the war in Syria on Facebook. He even joined a few WhatsApp groups which had members sharing information about the Islamic State and their movement in Syria.

He then decided to travel out from Malaysia to join the Islamic State but was caught at the Immigration counter at the Kuala Lumpur International Airport. He pleaded guilty and was sentenced to two years’ imprisonment.

Admissibility of WhatsApp Chats

What would be the suitable way to admit chat logs from instant messaging applications? Should a party need to get someone from WhatsApp or an IT expert to extract the chat logs from the application? Or do they need to use WhatsApp’s available function to produce the chat logs? Or would print screens of the chatlogs be sufficient?

In Pendakwaraya Lwn Greencity International College Sdn Bhd (Kuala Lumpur Magistrate Department Case Summon No.: 87-309-1/2015), the Court admitted and gave weight to screenshots of WhatsApp messages to prove a mala fide intent by a witness.

However, Mohamad Azhar Abdul Halim v. Naza Motor Trading Sdn Bhd [2017] 1 ILR 292, the Industrial Court disregarded a screenshot of a WhatsApp chat. In this case, the Claimant was dismissed by the Company for misconduct. He had allegedly sent threatening and harassing messages via WhatsApp to a colleague (COW-1) who then left due to the messages. The Claimant brought an action against the Company for wrongful dismissal.

The Company tendered a snapshot image (print screen) of the WhatsApp message. The snapshot did not mention the Claimant’s name, date of WhatsApp message, Claimant’s hand phone number or Claimant’s profile picture nor any other evidence to prove that it was indeed the Claimant who was purportedly having such conversation with COW-1. Meanwhile, COW-1 also admitted that the WhatsApp message that she has is merely screen snapshot/image and not the original WhatsApp messages as she had changed her handphone. Further, she did not screen shot the full conversation between COW-1 and herself.

The Claimant demonstrated to the Court how easy it was to fabricate a WhatsApp conversation that can be done within minutes. The demonstration was witnessed by all parties, including the Company’s learned counsel, who did not cross-examine the Claimant on this matter.The Industrial Court held that the WhatsApp snapshot image does not conclusively prove that it was indeed the Claimant who was purportedly having a conversation with COW-1 because it is undisputed/unchallenged that nowhere in the WhatsApp snapshot image was it mentioned the Claimant’s name, date of WhatsApp message, Claimant’s hand phone number or Claimant’s profile picture nor any other evidence to prove that there in fact was such a conversation. Furthermore, the WhatsApp snapshot image was not proven to be authentic because as demonstrated in Court the WhatsApp message can be fabricated resulting in a fabricated WhatsApp snapshot image of that message. Therefore, there is doubt as to whether the Claimant had a conversation with COW-1 at the material time and had stated the threatening and harassing messages via WhatsApp.

Yahoo Messenger

In 2015, 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 has proven that he is an innocent carrier using those messages. However, the Court of Appeal in PP v Rudolf Tschernezow (Criminal Appeal No J-05(LB)-345-12/2015) overturned the High Court’s decision and sentenced him to death.

In 2017, another lady tried to use her Yahoo Messenger chat logs to save her from the gallows. In Public Prosecutor v Ni Komang Yuningsih (Court of Appeal Criminal Appeal No. B-05(LB)-285-10/2015 (IND)), the Respondent, an Indonesian woman, was charged with drug trafficking under S. 39B(2) of the Dangerous Drugs Act 1952. She was acquitted by the High Court after she proved that she was merely an innocent carrier.

The High Court Judge relied on a print-out of conversation in “Yahoo messenger” and exchange of emails between the Respondent and a Nigerian man by the name of John Amadi who was claimed to be the Respondent’s lover. John Amandi persuaded her to come to Malaysia and had promised to marry her. John Amandi then sent the Respondent to India to meet his brother, Price, to discuss about their wedding. When the Respondent was about to fly to Malaysia, John Amandi’s brother gave her a luggage bag to be given to John Amandi. When she arrived in Kuala Lumpur International Airport, the custom officers found drugs in the luggage bag.

Notwithstanding the discovery, the High Court Judge acquitted the Respondent. The trial judge held that John Amadi and Prince are not fictitious characters but they do exist based on a print-out of Yahoo Messenger chat. The 195 pages printout was held to be impossible to be created by the defence at a very short period of time to strengthen its case and it also has a convincing story line.

Despite the acquittal, the Court of Appeal overturned the acquittal. The Court of Appeal was of the view that the Respondent’s deliberate omission to exercise a reasonable level of diligence in making sure that the bags given by Prince carries no incriminating items is an act of wilful blindness. There were too many inconsistencies with the Respondent’s evidence. She was accordingly sentence to death.

WhatsApp and Agreements

Can a legally binding agreement be forged through a WhatsApp conversation? In Shamsudin Bin Mohd Yusof v Suhaila Binti Sulaiman (Shah Alam Magistrate Court Suit No. BA-A72NCvC-384-03/2017), the Magistrate Court answered in the affirmative and held that an agreement was concluded based on oral and WhatsApp messages between the parties.

Would a WhatsApp message constitute written notice under an agreement? In Tengku Ezuan Ismara Tengku Nun Ahmad & Anor v. Lim Seng Choon David [2017] 1 LNS 1840, the Plaintiff sued the 1st Defendant for the return of his money paid for the purchase of the shares in the 2nd Defendant company pursuant to a Shareholders’ Agreement, among others. The 1st Defendant had sold the shares in the 2nd Defendants to the Plaintiff but failed to transfer the shares after being reminded repeatedly.

The Sessions Court allowed the application for summary judgment against the Defendants. The High Court upheld the Sessions Court’s decision. The Court had to decide whether a WhatsApp communication is considered as a “notice” in the context of clause 7 of the Shareholders’ Agreement. Clause 7 of the Shareholders’ Agreement provides –

Any notice required to be served by the parties hereto or by the Directors or EI [the 2nd Defendant] shall be served either by hand, by registered post or couriered post to the address of each party as stated above or by way of telex or facsimile transmission the numbers of which shall be provided by each of the parties to the other.

A skillful reader would know that Clause 7 above provides for only specific methods of transmitting the notice. Nevertheless, the learned Judicial Commissioner held that the WhatsApp message was sufficient to be a notice under Clause 7. She also held that Clause 7 of the Shareholders’ Agreement does not require the notice to be signed. Even if the requirement of a signature is implied into the said clause, that requirement was fulfilled by the Plaintiff. The 1st Defendant has never denied that he received the Plaintiff’s WhatsApp messages requesting for the transfer of the Shares to be effected. The Plaintiff’s WhatsApp messages is identified by the name “David” and the 1st Defendant is identified through his telephone number. As can be seen from the WhatsApp messages Plaintiff identified the 1st Defendant as “Tengku” to which the 1st Defendant has responded (via WhatsApp message too). Thus if the Plaintiff is required to sign as evidence of the Plaintiff’s identity, such requirement is fulfilled via the identity of the Plaintiff which is embedded in the mobile phone.

Electronic Notice

With the Government moving to digitising their services, many deliveries of correspondence are done through the Internet. Such delivery is not only limited to email, but also through their electronic portals. But what if the recipient did not know that a notice had been delivered through the electronic portal? Assuming that there is a deadline for the recipient to do something, when would the time starts to run? Would it be when the notice is published on the electronic portal or when the user logs into the portal to check it?

In Coach Malaysia Sdn Bhd v Ketua Pengarah Kastam Dan Eksais (Kuala Lumpur Originating Summons No: WA-25-193-07/2017) and Transmarco Concepts Sdn Bhd v Director General Of Customs And Excise (Kuala Lumpur Originating Summons No: WA-24-25-05/2017), the taxpayers applied for an extension of time to apply for leave to commence judicial review proceedings against the Director General of the Customs Department’s decisions which were uploaded to the Defendant’s electronic service by the name of Taxpayer Access Point (TAP System). The taxpayers alleged that they were not aware of the decision until they accessed the Tap System.

The High Court held that under subsection 167(3) of the Goods and Service Tax Act 2014 (GST Act), where a taxpayer has given his consent for a notice to be served on him through the electronic service, then the notice shall be deemed to have been served at the time when the electronic notice is transmitted to his account through the electronic service. As such, the clear effect of reading section 167 of the GST Act with Order 53 r 3(6) of the Rules of Court 2012 means that in respect of service of a decision where the taxpayer has opted for electronic service, the taxpayer is deemed to have knowledge of the notice once the notice had been transmitted to his account through the electronic service.

Part 2: The first statute in Malaysia to use the words “social media” and more.

First published on Digital News Asia on 26 March 2018

Bread & Kaya: Malaysian cyberlaw updates in 2015

By Foong Cheng Leong | Apr 04, 2016

– New, complex cases emerged, and Parliament enacted new laws
– With the advent of the TPPA, we can expect more changes

IN 2015, industry regulator the Malaysian Communications and Multimedia Commission (MCMC) reported that 10 people were convicted of offences under Section 233 of the Communications and Multimedia Act 2010 for, among others, disseminating pornographic material. MCMC also ordered 1,074 pornography websites to be blocked.

There were important developments in Malaysian and global cyberlaws in 2015. New, complex cases emerged in our courts, and Parliament enacted new laws to combat ‘negativities’ created by social media.

Facebook, Twitter and Google

As usual, our most popular online platforms caused rifts and problems. Fortunately, Deputy Communications and Multimedia Minister Jailani Johari stated that MCMC has no plans to require Facebook or any social media users to register with MCMC.

This is because the cost involved and there is a risk that such database may be hacked (see Hansard dated 15.12.2015).

In Mohd Desa bin Ahmad & 1 lagi v Hazudin bin Hashim & 2 lagi (Malacca Sessions Court Civil Suit No: A51-02-01-2015), the Malacca Sessions Court struck off a defamation suit initiated by a couple against the Yang Dipertua Majlis Perbandaran Jasin, Jasin Municipal Council and the Malacca State Government.

The couple alleged that the Jasin Municipal Council had uploaded pictures of their premises being seized for allegedly failing to pay assessment tax on the Yang Dipertua Majlis Perbandaran Jasin’s Facebook page. The Facebook posting allegedly went viral.

The Sessions Court however struck out the plaintiffs’ suit on the grounds that the plaintiffs had failed to identify who in the Jasin Municipal Council had uploaded the pictures. The Jasin Municipal Council and the Malacca State Government are not individuals, hence they cannot upload the pictures, and the plaintiffs ought to have named the individuals who had uploaded the pictures.

In PP v Yuneswaran a/l Ramaraj (Criminal Appeal No: J-09-229-09/2014), the accused was charged under Section 9(5) of the Peaceful Assembly Act 2012 (PAA) for failing to give at least 10 days’ notice before the Black 505 Rally was scheduled to have been held, to the Officer in Charge of the Police District (OCPD) of Johor Baru Selatan.

The notice had only been submitted to the OCPD on the day of the rally and was signed by the accused, Yuneswaran.

The accused had denied he was an organiser within the meaning of Section 3 of the PAA as the assembly was organised by the Majlis Pimpinan Negeri Parti Keadilan Rakyat, Negeri Johor (PKR Negeri Johor), chaired by Chua Jui Meng, and he had only signed the form on behalf of Chua.

However, the Sessions Court Judge held that he falls within such definition as he had filled up and signed the notification and announced the upcoming assembly using his Twitter feed and Facebook page, both of which would serve to invite the members or public and likely cause them to attend the assembly.

In addition, the Court of Appeal held that Section 9(5) of the PAA is not unconstitutional (thus departing from the earlier Court of Appeal case of Nik Nazmi Nik Ahmad v PP [2014] 4 CLJ 944), and the sentence against Yuneswaran was upheld.

In Network Pet Products (M) Sdn Bhd v Royal Canin SAS & Anor (Civil Appeal No. W-02(NCC)-1454-06/2013), there was a contractual dispute between the parties.

In this dispute however, the first defendant, being the brand owners of Royal Canin, filed a suit against the plaintiff for passing off and using the Royal Canin mark in a Facebook page opened by the plaintiff. The first defendant was successful and the High Court further directed the Facebook account to be deactivated.

The Court of Appeal overturned the High Court’s decision and held that there was no passing off. The Court of Appeal was of the view that the evidence disclosed showed that the first defendant was aware of the activation of the Facebook account from the start and had allowed it to continue.

In any event, the alleged confusion in the use of the Royal Canin mark simply did not exist. There was no confusion in the use of the mark in trade in the traditional sense of ‘passing off.’ The mark was used as denoting products belonging to RCSA. There was no attempt to pass off the first defendant’s products as the plaintiff’s products.

Interestingly, there was a dispute over the ownership of Facebook pages in the Singapore case of Lee Kien Meng v Cintamani Frank [2015] SGHC 109.

The plaintiff sought a declaration that he is the owner/sole administrator of the Men’s Fashion Week and Women’s Fashion Week Facebook pages. The Singapore High Court had reservations on declaring whether a Facebook page could be considered ‘property.’

Facebook Inc has control over the pages and has an unfettered right to remove Facebook pages. This control was strongly suggestive that the plaintiff did not own the Facebook pages above. If it did, it would not require the consent of Facebook Inc before it transferred the Facebook pages and Facebook Inc would not be able to remove the Facebook pages at its own discretion.

The case however did not discuss whether a Facebook page can be considered a transferable software licence.

Last year, I wrote that in Amber Court Management Corporation & Ors v Hong Gan Gui & Anor [2014] 1 LNS 1384, the management corporation of Amber Court Condominium and its council members sued two unit owners of the condominium for allegedly defaming them on Facebook.

The High Court struck out the case after finding that a management corporation has no powers to do so under the Strata Titles Act 1985 and common law. The case went up to Court of Appeal and the Court agreed with the High Court’s views and dismissed the appeal (see Amber Court Management Corporation & Ors v Hong Gan Gui & Anor W-02 [IM] [NCVC] 1840-10/2014).

Last year, I also reported that the Federal Court in Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541 did not endorse Internet research by Judges on their own motion.

Notwithstanding that, in Siti Nur Syahira Binti Abdullah & Ors v Kamri Bin Jini & Ors (Civil Appeal No. KCH-12B-13/11-2014), the learned High Court Judge stated that he “googled” for certain information (at page para 10 – “Based on what I have googled, the width of a Kancil is 1395 mm [1.4 metres]).

WhatsApp and Yahoo Chat

Instant messaging has taken on new importance in legal practice and the courts.

In Mok Yii Chek v. Sovo Sdn Bhd & Ors [2015] 1 LNS 448, the High Court finally addressed the admissibility of WhatsApp messages. The learned High Court Judge found that such messages are a document under Section 3 of the Evidence Act 1950 and admissible if agreed to by both parties.

Even if one party doesn’t agree, such a document can be admitted in Court if it meet certain criteria. Such criteria includes whether there is oral evidence that the messages were produced by the computer in the course of the ordinary use of the computer (see Para 24). In this case, a screenshot of the messages would be admissible.

In Ram Kumar a/l Gopal Ram and Anor v Ram Kailash a/l Gopal Ram (Civil Suit No: 22NCVC-317-06/2014), the Court dealt with WhatsApp conversations.

In this dispute between two brothers over a piece of property, the elder brother and his wife (plaintiffs) alleged that they had an arrangement where they would buy the property in the younger brother’s name (defendant). They sought a court order to declare that fact.

However, the defendant claims that the property was bought as a wedding gift for him. In a bid to strike out the case, the defendant tried to use the WhatsApp conversation between the defendant and his sister-in-law against the plaintiff to strike out the case.

However, the Court held that the WhatsApp conversation was insufficient to show that the plaintiffs’ case was plain and obvious unsustainable.

In Alliance Bank Malaysia Berhad [2015] 1 LNS 666, the High Court Judge refused to grant a further adjournment on the ground that the defendant is uncontactable.

The Judge stated it is highly improbable that the defendant’s lawyer could not contact the defendant in this electronic age when communication can be effected instantaneously by telephone, facsimile, email, short message system (SMS), WhatsApp and other modes of electronic communications.

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.

The Court of Appeal held that the High Court ought to have considered the Yahoo Messenger Chat between her and one Dr Jossy, who was her boyfriend and had sent her to India to collect samples of children’s clothes.

The Yahoo Messenger Chat was sufficient to prove that Rina was an innocent carrier and she had no knowledge that she had been carrying drugs.

Our local court cases also revealed that Malaysian youth had been influenced through social media to join the Islamic State (ISIS) as fighters.

In Pendakwa Raya v Mohd Syafrein Rasid [2015] 1 LNS 943, the accused was charged under Section 130J of the Penal Code for attempting to support the Islamic State and attempted to be a member of the same.

It was revealed in this case that the accused was influenced by what he saw about the war in Syria on Facebook. He even joined a few WhatsApp groups which had members sharing information about the Islamic State and their movement in Syria.

He then decided to travel out from Malaysia to join the Islamic State but was caught at the Immigration counter at the Kuala Lumpur International Airport. He pleaded guilty and was sentenced to two years’ imprisonment.

New cyberlaws and amendments

The Malaysian Government has introduced the Sedition (Amendment) Bill 2015 which, among others, creates liability on website operators such as online forums, online news portals, and even Facebook page/ group owners.

The new Section 10(5) of the Sedition Act 1948 compels a person who knowingly has in his possession, power or control a prohibited publication by electronic means, to remove or cause to be removed, such publication – failing which, he shall be liable to a fine not exceeding RM500,000 (US$137,000) or imprisonment not exceeding three years, or both.

As per the new Section 10(1), a Sessions Court Judge, on the application by the Public Prosecutor, can make an order to prohibit the making or circulation of certain sedition publications (that are likely to lead to bodily injury, damage to property, promote feelings of ill will, etc.).

Any person making or circulating the prohibited publication shall remove or caused to be removed that publication, or be prohibited from accessing any electronic device. Any person who fails to do so shall be guilty to a fine not exceeding RM500,000 or to imprisonment not exceeding three years, or both.

There is also news that the Communications and Multimedia Act 1998 will be amended but the details of the amendments are still vague.

However, the new amendments have also been rumoured to include harsher sentences and restrictions on social media users in posting comments or opinions online.

The Bar Council has called for the repeal of Section 233(1)(a) of the Communications and Multimedia Act 1998 as it is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution.

Before the dispute on the legality of the sale of vaping products started, the Malaysian Government introduced a new law to prohibit the sale of tobacco products (Reg 10 Control of Tobacco Product (Amendment) Regulations 2015).

Any person who does so shall be liable to a fine not exceeding RM10,000 or imprisonment for a term not exceeding two years, or both. Any person who is thinking of launching a startup to sell and deliver cigarettes online can now bin that idea.

Online harassment

Last year I wrote about the passing of the Singapore Protection from Harassment Act 2014. Prominent blogger Xiaxue was the first or one of the first persons who took advantage of this new law by putting in an order against the operators of the satirical Facebook page SMRT (Feedback).

The Singapore Government tried to invoke the new law to protect itself from harassment but the Court held that the protection is not available to the Government (Ting Choon Meng v Attorney-General and another appeal [2015] SGHC 315).

Sadly, the Malaysian Government has not introduced such laws to protect individuals from harassment. It is noted that Section 233 of the CMA does provide some form of protection from harassment, but it is limited to electronic harassment which is obscene, indecent, false, menacing or offensive in character.

I later found out the Singapore anti-harassment law was ‘inspired’ by the online harassment against the son of prominent Malaysian bloggers Timothy Tiah and Audrey Ooi (Fourfeetnine).

In Ooi’s blog, she quoted the Singapore Minister of Law as stating: “In another case, cyberbullies targeted the baby of a blogger. The blogger had given birth prematurely because there was a life-threatening condition during the pregnancy. Cyberbullies called her baby an ‘alien’. They said the baby should be euthanised. This was really quite sickening behaviour. It comes from basic bullying instincts of some, unchecked by any notion of civil conduct, and aided by anonymity.”

It is unfortunate that our Government had not introduced any new law to address this problem, notwithstanding that such harassment is happening to fellow Malaysians.

Nevertheless, the Court of Appeal did recognise sexual harassment as an actionable tort – that means one can file a civil suit against the harasser instead of filing a report with the authorities such as the police or MCMC.

In Mohd. Ridzwan Bin Abdul Razak v Asmah Binti Hj. Mohd. Nor [2015] 4 CLJ 295, the Court of Appeal held that sexual harassment falls within the category of tort of intentionally causing/ inflicting nervous shock.

With this case, it is arguable that harassment may be actionable in Court if it fulfils the element of tort of intentionally causing/ inflicting nervous shock.

Ride-sharing, other developments

The year 2015 finally saw the battle between app-based transportation network companies such as Uber and local taxis arriving in Malaysia.

On Aug 7 2015, Malaysia’s Land Public Transport Commission (SPAD) announced on its Facebook page that it had seized 12 cars alleged to have been providing public vehicle services without a licence, under Uber and GrabCar.

Local taxi drivers had also taken matters on their own hands by ‘arresting’ Uber and GrabCar drivers in the Kuala Lumpur City Centre (KLCC) area.

While the battle is still on going in Malaysia, the Singaporean Government introduced a new law called the Third-Party Taxi Booking Service Providers Act 2015.

The Act is designed for a ‘light-touch approach’ and imposes only the basic requirements necessary to protect commuter interests and safety, but at the same time it aims to preserve the fundamental tenets of Singapore’s taxi regulatory policies (see Third-Party Taxi Booking Service Providers Act 2015 Comes Into Force On 1 September 2015 by Drew & Napier, PDF).

In the lead-up to the Bersih 4 demonstration [which called for the resignation of Prime Minister Najib Razak as well as institutional reforms – ED], the websites and were ordered to be blocked by MCMC on the grounds that they “violate national laws.”

Although the blocking order, purportedly under Section 263(2) of the Communications and Multimedia Act 1998, had been made for some time, activists and the media started to question MCMC’s moves. No actual offence needs to be committed but an attempt is sufficient to enable MCMC to act against a website.

Nevertheless, the block against was subsequently lifted after its operator issued a letter of demand to MCMC to lift the block.

Nevertheless, I am made to understand that the amendment to CMA will include express powers to block certain websites.

In closing …

With the advent of the Trans-Pacific Partnership, we can expect more changes to our laws. The Trans-Pacific Partnership Agreement (TPPA), of which Malaysia is a signatory, will require signatories to amend their laws to comply with the provisions of the TPPA.

The TPPA includes a specific section on electronic commerce (e-commerce). For example, a signatory to the TPPA shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form.

There are also provisions to deal with personal information, online consumer protection and electronic spam.

First published on Digital News Asia on 4 April 2016.

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