PP v Sow Kuen Chun

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. 

Overview

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.

CONTENTS:

  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: Looks can be deceiving!

My 3rd issue of Bread and Kaya was published by Digital News Asia on 7 March 2013.

Bread & Kaya: Looks can be deceiving!

– Under Malaysian laws, what amounts to obscene, indecent, false, menacing or offensive in character is quite wide
– Sessions Court decisions perhaps the reasons why Section 114A of the Evidence Act 1950 was introduced

Bread & Kaya by Foong Cheng Leong

A COUPLE of weeks ago, I received a message with the title “Looks can be deceiving!” on my blog’s Facebook page, from an unknown user.

In the message, the user claimed that a certain celebrity was having an affair with another celebrity. Unknown to the user, I happen to know former and I alerted that celebrity.

A day after that, the user deleted her account! Fortunately, I saved a screenshot of the message.

Coincidentally, I found that someone had searched for the celebrity’s name on the day the message was sent and landed on my blog. My blog captured the transaction, together with the Internet Protocol (IP) address, time-stamp and other details. It was the only transaction searching for the celebrity’s name.

There was also a record to show that the user clicked on the link to my blog’s Facebook page. From this, there is a possibility that the author had found my blog using the celebrity’s name (and my blog appears on the first page of search results) and decided to send me that message.

A query on the IP address shows that the user resides in Malaysia and is thus subject to the laws of Malaysia. The celebrity may file an action in court to obtain the user account details of the IP address if she wishes to. Alternatively, she may make a police report against that person.

The lesson of the story is: If you want to do naughty things online, remember to mask your tracks (e.g. by using proxies); otherwise the law will come knocking on your door. Internet trolls have been living amongst us and many still roam the streets of cyberspace.

This brings me to the topic of this article: Section 233 of the Communications and Multimedia Act 1998.

Section 233 makes it an offence to post any content which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.

Anyone who does so is liable to a fine not exceeding RM50,000 or to imprisonment for a term not exceeding one year, or both, and shall also be liable to a further fine of RM1,000 for every day during which the offence is continued after conviction. It’s a widely used tool by law enforcers to nab Internet trolls.

[RM1 = US$0.32]

What amounts to obscene, indecent, false, menacing or offensive in character is quite wide. Making prank emergency calls (PP v Sow Kuen Chun; Criminal Case No. 63- 01- 2008); and insulting the Sultan (PP v Muslim bin Ahmad; [2013] 1 AMR 436); offensive comments (Nor Hisham Bin Osman v PP; Criminal Case No: MTJ(2)44-14-2010)), and (PP v Rutinin Bin Suhaimin (Criminal Case No. K42-60-2010)) are examples where people were charged under Section 233.

[Click links above to download case files]

PP v Muslim bin Ahmad and PP v Rutinin Bin Suhaimin are both recently decided cases and they relate to the Perak constitutional crisis. Both men had allegedly posted offensive comments towards the Sultan of Perak after Barisan Nasional took over the state of Perak. Both men alleged that they did not post the comments, notwithstanding that the IP addresses point to them.

Muslim bin Ahmad was acquitted by the Sessions Court and Rutinin bin Suhaimin was discharged by the Sessions Court without his defense being called. The prosecution had apparently failed to show that the persons who posted the offensive comments were the accused.

I am told that the impact of the said Sessions Court decisions was one of the reasons why Section 114A of the Evidence Act 1950 was introduced – that is, to facilitate the prosecution in proving the identity of the maker.

To recap, under Section 114A, a person is deemed to be a publisher of a content if it originates from his or her website, registered networks or data processing device of an Internet user unless he or she proves the contrary.

This new law sparked a massive online protest dubbed the Malaysia Internet Black Out Day or also the Stop114A.

However, the High Court subsequently overturned said Sessions Court decisions. Rutinin Bin Suhaimin’s defense was called. Interestingly, the learned High Court judge was of the view that calling the Sultan of Perak names has the tendency to cause annoyance or abuse to any person, thus falling within the ambit of Section 233.

Muslim Bin Ahmad was handed a fine of RM10,000 for each charge and six months’ imprisonment. He pleaded for a “binding over order” (released on probation).

However, the learned High Court Judge warned that a binding over order “would send the wrong message to would be offenders and the public at large that offensively uncontrolled and virulent comments can be indiscriminately posted on the Internet without any or serious repercussions. And that is not a message that this court would like to send out.”

Surprisingly, Section 114A of the Evidence Act 1950 was never relied on by the Courts. In fact, the High Court in PP v Rutinin Bin Suhaimin said that 114A is not applicable because the postings were made before the enforcement date of 114A (July 31, 2012).

This ruling is interesting as it may be a defense for website owners who can argue that 114A does not apply to posting made by their users prior to July 31, 2012.

Nevertheless, these laws and cases serve as a reminder that the Internet is not a ‘wild, wild west.’ Netizens need to be accountable for what they say. Further abuse by netizens attracts further legislations by Government.

Unfortunately, website owners now face the brunt of 114A due to the actions of their users. Their pleas for the repeal or amendment of 114A are still unanswered.

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