Sexual Offences Against Children Act 2017

Bread & Kaya: 2018 Malaysia Cyber-law and IT Cases PT3 – Cyber-crimes and -offences

By Foong Cheng Leong
May 3, 2019

  • Laws introduced to regulate e-hailing services
  • Sexual grooming enters the books as a new offence 

IN THIS third of a four-part series, I will discuss cyber-crime cases and other cyber offences.

Communications and Multimedia Act 1998

The establishment of Cyber Courts in the Kuala Lumpur Sessions Court saw the growth of judgements relating to the Communications and Multimedia Act 1998.

In Pendakwa Raya lwn Dato’ Mohd Zaid Bin Ibrahim (Kuala Lumpur Criminal Sessions Court Case No. 63-003-12/2015), the learned Sessions Court Judge gave a comprehensive judgement regarding a charge under s. 233(1)(a) of the Communications and Multimedia Act 1998.

The accused, a former Minister of Law, was charged for publishing a statement which is offensive in nature on his blog with an intent to annoy another person. The statement consists of a transcript of the accused’s speech given at a luncheon relating to the conduct of the then Prime Minister Najib Razak.

The learned Sessions Court Judge acquitted the accused at the prosecution stage based on the following grounds, among others:-

(1) In determining whether the article is offensive in nature, the article must be examined as a whole and not by looking in a few paragraphs or words. This is because the accused was charged for uploading the article and thus the entire article is considered as offensive in character. The prosecutor cannot pick and choose the relevant paragraphs or words favourable to them and conclude that the article is offensive in character.

(2) The learned Sessions Court Judge looked into the object of the Communications and Multimedia Act 1998 set out in s.3 of the said Act. One of the objectives of the Act is to promote a civil society where information-based services will provide the basis of continuing enhancements to quality of work and life. The learned Sessions Court Judge also considered that the said Act addressed the issue of censorship where nothing in the said Act shall be construed as permitting the censorship of the Internet.

(3) None of the Prosecution’s witnesses stated that they found that the entire article is offensive in character. Two (2) of the prosecution’s witnesses referred part of the article and not the whole article. In fact, the complainant’s police report against the accused had only stated that the article is seditious in nature which is different from offensive in character.

(4) Such article must be examined and not taken without further examination without critical thinking. This is one of the objectives that s. 3 of the said Act seeks to achieve. The attitude of receiving news blindly should be avoided and the new culture in accordance with the purpose and objective of the said Act ought to be promoted.

(5) In respect of the element “with intent” to annoy another person, the learned Sessions Court Judge held that that intent has to be proved and no evidence has been adduced to prove the same. As for the element “annoy another person”, the learned Sessions Court Judge found that the complainant did not feel annoyed when he read the article. The learned Sessions Court Judge held that annoyance or anger or dissatisfaction would appear spontaneously when the article is read. The learned Sessions Court Judge found that the article is intended for blog readers to garner support for what it is written for i.e. to give support to Prime Minister Dr Mahathir.

(6) The charge is defective as the prosecution failed to state clearly in the charges sheet who is the person intended to be annoyed by the accused when the article was uploaded. The charge sheet had only stated “with the intent to annoy another person”. The person in the charge sheet must be named clearly.

(7) The Prosecution should have also called the person intended to be annoyed by the article to testify whether the victim felt annoyed by the article. Without evidence from the victim, the Court is left wondering whether the victim felt annoyed by the article.

In Sivarasa Rasiah v Pendakwa Raya (Kuala Lumpur Criminal Sessions Court Case No. 63-001-04/2016 & 63-002-04/2016, Criminal Application No: 64-085-07/2016) and Premesh Chandran a/l Jeyachandran v Pendakwa Raya (Kuala Lumpur Criminal Sessions Court Case: WA-64-155-12/2017), the two accused were charged under s. 233(1) of the Communications and Multimedia Act 1998. They filed an application to refer a few constitutional issues 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 8 and 10(2)(a) of the Federal Constitution.

The Prosecution raised a preliminary objection against this application on the ground 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 dismissed the application on the ground 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 reasonable and not unconstitutional.

Fortunately for the two accused, the charges were withdrawn against them after the change 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 known as Vivian of the Alvivi duo, was found guilty by the Sessions Court for an offence under s. 4(1)(c) of the Sedition Act 1948 and sentenced to an imprisonment term of five (5) months and twenty (22) days.

Vivian and her co-accused, Alvin Tan, had published a picture of themselves with the words “Selamat Berbuka Puasa (dengan Bak Kut Teh. wangi,enak, meyelerakan!!!) with the Halal logo on the Facebook page “Alvin and Vivian-Alvivi”.

She appealed against her conviction and sentence. There was also a cross-appeal by the prosecution against the inadequacy of sentence meted out by the Sessions Court Judge.

The co-accused absconded through the trial and was absent until the conclusion of the trial.  

The High Court dismissed the appeals. The learned Judge found that Vivian and Alvin Tan had a common intention to publish the picture, and that Vivian was a willing participant. Although no one saw Alvin or Vivian posting the picture, the learned Judge also made an inference from the evidence showing that the picture was kept in Alvin’s notebook and the Facebook page was registered in the name of Alvin and Vivian.

The High Court however substituted the sentence of five (5) months and twenty (22) days imprisonment with a fine in the sum of RM5,000 in default, imprisonment of six (6) months. The High Court in the same vein dismissed the prosecution’s appeal on the inadequacy of the sentence.

Official Secrets Act 1972 – Liability for receiving forwarded messages

Last year, I reported that one Subbarau @ Kamalanathan (Pendakwa Raya v Subbarau @ Kamalanathan (Court of Appeal Criminal Appeal No. N-06B-55-09/2016) was charged in the Sessions Court under s. 8(1)(c)(iii) of the Official Secrets Act 1972 (OSA 1972) for having possession in his Samsung mobile phone soft copies of 2014 UPSR examination papers.

In the same year, the Court released two more judgements relating to the possession of Ujian Penilaian Sekolah Rendah (UPSR) examination papers which they had received via forwarded messages on WhatsApp.

In Pendakwa Raya lwn Uma Mageswari A/P Periasamy @ Mayandy (Kuala Kangsar Sessions Court Criminal Case No. 61-1-11-2014) and Pendakwa Raya v Anparasu al Kadampiah (Kuala Kangsar Sessions Court Criminal Case No. 61-2-11-2014), the two school teachers were charged with possession of a few pages of examination papers for Ujian Penilaian Sekolah Rendah (UPSR) for Science 018 under s. 8(1)(c)(iii) of the Official Secrets Act 1972. Both were acquitted as the photographs of the examination papers were forwarded to them and stored automatically on their mobile phones, and they had no use for them, among others.

The prosecution of persons who possess information received via forwarded messages is a dangerous precedent. The law should make exception to those who had not knowingly received such information and chose not to delete those information thereafter.

Online and phone scams – Scammer or victim?

Online and phone scams have become common in Malaysia. The authorities had been tracking and arresting these scammers but many of them are based outside Malaysia. Instead, these scammers use the services of Malaysians, whether knowingly or not, to receive and dissipate money.

In Pendakwa Raya lwn Charles Sugumar a/l M. Karunnanithi (Kota Bharu Magistrate Court Kes Tangkap No: MKB (A) 83-43-02/2016), the accused was charged under s. s. 424 of the Penal Code for dishonestly concealing money of a scam victim in his bank account knowing that the said money does not belong to him. The victim had befriended a person by the name of Alfred Hammon from UK through Facebook. Alfred Hammon then made the victim transfer money to the accused’s bank account on the pretence that he needed the money to cash his cheque of three million dollars. Alfred Hammon promised that he will return the money together with interest. However, after transferring the money, the victim realised that she was scammed.

The accused claimed that he is not part of the scam and that when he was working as a tour driver, he was requested by his customer to receive money on the customer’s behalf. The accused claimed that he did it to give his customer the best service so that he can attract more customers. He said that he was informed by the customer that the customer’s friend had to transfer money to him so that the customer can continue his tour in Malaysia. The accused said that he did not make any remuneration or commission from that assistance.

The Magistrate acquitted the accused as the Magistrate found that, among others, the accused’s evidence is consistent and he is a credible witness. The Magistrate agreed that the accused was made a scapegoat by the customer who took advantage of his goodness and sincerity in giving the best service as a tour driver.

In Pendakwa Raya lwn Sabariah Binti Adam (Magistrate Court Criminal Trial No. 83RS – 206 – 08 / 2016), the accused was charged with two counts of knowingly concealing stolen property, an offence under s. 414 of the Penal Code. The victim was duped by a Facebook user by the name of Nasir to bank in her money into the accused’s bank account. The accused claimed that she was a victim of the same trumpery scheme and not the perpetrator. She has no control and custody over her bank account. The Court however drew inference that an account holder must be held responsible for all transaction initiated or authorised using her account number including transaction by another person whom the account holder has given permission to. The Court sentenced the accused twelve (12) months imprisonment for each charge.

However, in Pendakwa Raya lwn Hasimah Binti Aziz (Kuala Lumpur Criminal Sessions Court Case No. WA-62CY-052-08/2017), the accused was charged under s. 4(1)(b) of the Computer Crimes Act 1997 for allowing access without authorisation to her Maybank bank account and thereafter assist a scam against the complainant.

The complainant was tricked into transferring money to the accused to pay for charges to release a present purportedly sent by a person she knew from Facebook. The investigating officer found that the accused had given her automatic teller machine (ATM) card to a person she knew from Facebook. That person claimed he could not open a bank account in Malaysia.

The Court held that based on the evidence produced, it is clear that the complainant and accused were online scam victims themselves. The accused was deceived into giving her account number, ATM card and PIN number. The complainant on the other had was deceived into paying courier charges, among others. If detailed investigation was made, the main character of the scam would be revealed. There was no attempt to obtain the CCTV recording of who had taken the money from the ATM machine. The bank officer had testified that CCTV recording are stored by the bank for three (3) months. If the CCTV recording was obtained, it would reveal who had used the ATM card.

Sexual grooming – A new offence

In Syed Naharuddin Bin Syed Hashim v Etiqa Takaful Berhad (Award No.: 3143/2018), the Claimant was dismissed after the Company received an anonymous email alleging that the Claimant had been operating as a sexual predator and targeting girls as young as thirteen-years-old.

The anonymous author also alleged that the Claimant, using the pseudonym, “KBoy”, carried out his meetings with girls. It was also alleged that the Claimant’s conversations had been recorded and featured in an undercover expose by the Star newspaper team of journalists know as STAR R.AGE Team. An investigation by the Company revealed that there were two video recordings featuring K-Boy which had been uploaded onto the STAR R.AGE online website and the videos had gone viral on YouTube. The Claimant admitted that he was the individual in the video.

The Industrial Court held that the actions of the Claimant can amount to a sexual communication under the Sexual Offences Against Children Act 2017. The facts of the case which are largely admitted to by the Claimant, are that he communicated with the intended “victim” in social media and then met up with the person (who informed him that she was a young girl of 15). The setting, the time and the locale were such that a person of his standing in society and representing an insurance company should have been wary of. Further, the conversations were explicitly related to sex and sexual exploits which a man of his age has no business to discuss with a young lady, notwithstanding her real age.

The Court found that the termination was with just cause or excuse and the Claimant’s case is therefore dismissed.

E-hailing services – Naughty GrabCar driver

In Pendakwa Raya lwn Muhamad Izuwan Bin Kamaruddin (Mahkamah Magistrate Ampang No Kes: 85-55-09/2017, 83JS-16-09/2017 dan 83-780-09/2017), a GrabCar driver was charged under ss. 323, 354 and 506 of the Penal Code for assaulting his passenger. He pleaded guilty and was sentenced to a total of 3 years and five (5) months.

In deciding the sentence, the learned Magistrate took into account of the negative effect on the e-hailing provider GrabCar which may cause difficulty to female passengers to trust a GrabCar driver. The learned Magistrate imposed a deterrence sentence to send a message to all drivers so that they will drive ethically and treat their passengers with respect and not take advantage of then.

On another note, the Commercial Vehicle Licensing Board (Amendment) Act 2017 and Land Public Transport (Amendment) Act 2017 came to force on 12 July 2018.

These new laws introduced the licensing of intermediation business. Intermediation business is defined as “business of facilitating arrangements, booking or transactions of e-hailing vehicle (pursuant to the new amendment to CVLBA) and for the provision of land public transport services (pursuant to the new amendment to LPTA). These amendments were introduced to regulate e-hailing services such as Grab and also e-hailing vehicles.

Part 4 which focuses on commercial cases will be published on May 10.

First published on Digital News Asia on 3 May 2019

Bread & Kaya: 2018 Malaysia Cyber-Law And IT Cases – Fake News, Private Information & Instant Messaging

THE change of Government after the 14th General Election saw changes to our sphere of cyber and IT laws. The new Government withdrew numerous charges under s.233 of the Communications and Multimedia Act 1998, especially against those who had allegedly spoke against the previous Government.

The Anti-Fake News Act 2018 that was introduced before the 14th General Election was quickly shipped away by the House of Representatives via The Anti-Fake News (Repeal) Bill 2018, but was thwarted by the Senate. One person has been charged and sentenced under this Act.

There has also been an array of interesting cyber- and IT-related cases in our Courts.

An employee was dismissed from his job as his conduct could amount to sexual grooming under the Sexual Offences Against Children Act 2017. His action was recorded and featured in an undercover expose by the Star newspaper team of journalists know as The STAR R.AGE Team.

We saw the first decision on the liability of online service providers i.e whether they are liable for trademark infringement for the sale and advertisement of their Merchants’ products published on their website.

We also saw a greater adoption of the electronic service of Court documents. In 30 Maple Sdn Bhd v Noor Farah Kamilah Binti Che Ibrahim (Kuala Lumpur High Court Suit No: WA-22IP-50-12/2017), the Intellectual Property High Court granted an application to serve a Writ and Statement of Claim via email and WhatsApp messenger after it could not locate the Defendant at her last known address.

Traditionally, when a Defendant cannot be located, a Plaintiff would normally ask the Court to allow a notice relating to the lawsuit to be published in the newspaper, among others. The current Rules of Court 2012 does not expressly recognise the electronic service of Court documents notwithstanding that people are more mobile these days. Furthermore, the chance of being able to communicate with someone online is much higher than in person.

PKR communications director and Member of Parliament for Lembah Pantai, Fahmi Fadzil’s civil suit against the Malaysian Communications and Multimedia Commission and Nuemera (M) Sdn Bhd (Ahmad Fahmi Bin Mohamed Fadzil v Suruhanjaya Komunikasi dan Multimedia & Anor (Kuala Lumpur Sessions Court Suit No. WA-A52-2-02/2018)) for allegedly failing to protect his personal data which resulted in the leakage of his personal data together with the personal information of 46.2 million mobile subscribers has now been settled. This was one of Malaysians’ biggest data leaks. However, the terms of settlement were not disclosed.

Nevertheless, the lawsuit by Nuemera (M) Sdn Bhd against Malaysian Communications and Multimedia Commission (Nuemera (M) Sdn Bhd v Malaysian Communications and Multimedia Commission(Kuala Lumpur High Court Originating Summons No. WA-24NCC(ARB)-14-04/2018)) over its suspension of their services to the Commission due to the data leakage is pending before the Court of Appeal (Civil Appeal No. W-01(NCC)(A)-318-05/2018). The details of the lawsuit are unknown as the Court documents have been sealed by the Court.

I will summarise all these over four articles as part of my yearly tradition of what happened in the preceding year.

Anti-Fake News Act 2018 – Taking down fake news

The Anti-Fake News Act 2018 was quickly passed by the previous Government prior to the 14th General Election.

According to the explanatory note of the Anti-Fake News Bill 2018, the law was introduced to seek to deal with fake news by providing for certain offences and measures to curb the dissemination of fake news and to provide for related matters. As technology advances with time, the dissemination of fake news becomes a global concern and more serious in that it affects the public.

The Act seeks to safeguard the public against the proliferation of fake news whilst ensuring that the right to freedom of speech and expression under the Federal Constitution is respected. The provision on the power of the Court to make an order to remove any publication containing fake news serves as a measure to deal with the misuse of the publication medium, in particular social media platforms. With the Act, it is hoped that the public will be more responsible and cautious in sharing news and information.

S.4 of the Anti-Fake News Act 2018 makes it is an offence for any person who, by any means, maliciously creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news.

“Fake news” is defined as any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.

It was reported that one Salah Salem Saleh Sulaiman was charged and punished under s. 4(1) of the Anti-Fake News Act 2018, which carries a punishment of up to six years in prison and a fine of up to RM500,000, for maliciously publishing fake news in the form of a YouTube video under the user name Salah Sulaiman. He pleaded guilty and was sentenced to a week’s jail and fined RM10,000.

Online news portal, Malaysiakini.com, tried to challenge the constitutionality of the Act but failed in the High Court. In Mkini Dotcom Sdn Bhd v Kerajaan Malaysia & Anor (Kuala Lumpur Judicial Review Application No. WA-25-111-04/2018), Justice Azizah Nawawi held that the application should be dismissed as neither Malaysiakini nor its reporters had been charged under the law. She allowed the objection by the Government to refuse the leave application as the applicant is not adversely affected and the action is premature. Malaysiakini appealed to the Court of Appeal (Civil Appeal No. W-01(A)-399-06/2018) but the appeal was subsequently withdrawn.

As soon as Pakatan Harapan took over the Government, the Anti-Fake News (Repeal) Bill 2018 was introduced to repeal the Anti-Fake News Act 2018. The explanatory note of the Bill stated that fake news may be dealt with under existing laws such as the Penal Code, the Printing Presses and Publications Act 1984 and the Communications and Multimedia Act 1998. As such, the Act is no longer relevant. The House of Representatives passed the said Bill. However, the Senate rejected the Bill. As of the date of this article, the Anti-Fake News Act 2018 still stands.

Family disputes

Private Information – Leaked nudes

As video recording and photography become easily accessible, our Courts are now stating to deal with electronic files containing intimate and/or private materials.

In Datuk Wira S.M Faisal Bin SM Nasimuddin Kamal v Datin Wira Emilia Binti Hanafi & 4 Ors[2018] 7 CLJ 290, the 1st Defendant, the ex-wife of the Plaintiff, had taken into possession mobile phones and USB Flash Drives belonging to the Plaintiff. It was alleged that one of the flash drives contains files which featured intimate and/or private audio-visuals.

The Plaintiff sued the 1st Defendant and her other family members for the return of the devices. The High Court held that there had been no denial that the devices belonged to the Plaintiff. In view of the aforesaid, the High Court ordered the return of the devices.

In M v S (Joint Petitioners) (Sabah and Sarawak High Court), the High Court had to deal with the expungement of nude pictures allegedly of the wife. The husband and wife were fighting over the custody of their children. Custody was earlier granted to the husband and the wife applied to vary the custody order.  

In opposing the application, the husband exhibited in his affidavit nude photographs of the wife taken from her computer and hand phone without her consent and stated she is a “wild woman” and an unfit mother. The wife applied to expunge several paragraphs and related nude pictures in the said affidavit under Order 41 Rule 6 of the Rules of Court 2012.

The High Court found that the wife did not release the pictures into the public domain. She had stored them privately in her hand phone and laptop computer. It is the husband who accessed them without her permission and gave access to others including law firm staff and court staff by exhibiting them in the affidavit in opposition without any sort of censoring whatever.

Thus, the exhibition of the said pictures of the wife in the affidavit in opposition was a gratuitous and malicious act to embarrass and humiliate her. The exhibition of the uncensored pictures in the husband’s affidavit was therefore scandalous and oppressive. Under these premises, the discretionary power vested in the court under Order 41 rule 6 of the Rules of Court 2012 should come to the aid of the wife.

The High Court also held that, in this day and age, private intimate photographs of a person stored in the computer or handphone should not suggest that person in question is immoral or an unfit parent.

Instant messaging – “WhatsApping” your children

In Lee Chui Si v Teh Yaw Poh (Sabah & Sarawak High Court Divorce Petition No. KCH-33JP-234/7-2017), the High Court found ways to soften the blow of a divorce by introducing the use of electronic messaging. The husband and wife fought over the custody of their children but two of their children do not wish to see their father.

Nevertheless, the learned Judge was of the view that a window of opportunity should be left open for the father to make amends to his two children. As such, in lieu of physical access, access to their father can be given by way of communicating with them via mobile phones (WhatsApp, phone calls, SMS or WeChat). In view of the present strained relationship between the two children and their father, the communication between them should be limited in the early stage and the Judge limited it to one phone call not exceeding ten minutes and two text messages a week. If the said two children respond and feel comfortable with communicating with their father, the number of phone calls and texting can be more than what the court has decreed.

Part 2 which focuses on cyber-defamation will be published on April 26

First published on Digital New Asia on 19 April 2019.

Bread & Kaya: 2017 Cyberlaw cases Pt3 – sexual offences against children and computer crimes

By Foong Cheng Leong | Mar 30, 2018
– Sending death threats using someone else’s mobile phone is not OK
– 2018 will mark interesting year for cyber related cases including Uber driver suing Uber

THE first statute in Malaysia to use the term “social media” is part of the law designed to protect children against sexual offences and not any computer crimes related or media related law.

At the same time a bank officer got into hot soup for using their superior’s email account and password. Let’s go through these cases now.

Crime

Sexual Offences Against Children Act 2017

The Sexual Offences Against Children Act 2017 was introduced to address the seriousness of sexual offences committed against children in Malaysia. The ultimate object of the proposed Act is to provide for better protection for children against sexual offences and to safeguard the interest and well-being of children and to provide effective deterrence.

One of the laws introduced is the law against child grooming. S. 12 of the Act states that child grooming is an offence punishable with imprisonment of no more than 5 years and liable for whipping. The Act specifically stated that the following amounts to child grooming :-

(a) A communicates with Z, a child via social media by pretending to be a teenager and develops a love relationship with Z with the intention of using Z in the making of child pornography. A never meets Z. A is guilty of an offence under this section .

(b) A communicates with Z, a child via e-mail and befriends Z with the intention that A’s friends C and B could rape Z. A never meets Z. A is guilty of an offence under this section.

This law is also the first statute in Malaysia to use the words “social media”.

Last year, we were anticipating the amendments of the Communications and Multimedia Act 1998. However, the amendments never came. Nevertheless, numerous people were investigated under s. 233 of the Communications and Multimedia Act 1998. Notably, in the case of Mohd Fahmi Redza Bin Mohd Zarin Lawan Pendakwa Raya dan Satu Lagi Kes (Kuala Lumpur Criminal Application No. 44-103-08/2016), the accused was charged under s. 233 of the Communications and Multimedia Act 1998 for publishing an offensive Instagram posting using the username kuasasiswa. The accused filed an application to strike out the charge on the grounds that:-

– s. 233 of the Communications and Multimedia Act 1998 is unconstitutional and/or ultra vires in view of Article 5(1), 8 and 10(1)(a) of the Federal Constitution
– the charge against him acts as and/or has the characteristic of a censorship and therefore in contravention of the objectives of the CMA according to s. 3(3) of the CMA; and
– the charge against the accused is defective as it does not have the details of the parties that were offended by his acts.

The Public Prosecutor applied to have the matter heard before the Federal Court in respect of the issues on the constitutionality of s. 233 of the CMA (in accordance with ss. 30 and 84 of the Courts of Judicature Act 1964. Upon hearing the parties, the High Court referred the matter to the Federal Court for the latter to decide on the following question:-

Whether Section 233(1)(a) of the Multimedia and Communication Act (Act 588) is Inconsistent with Article 5(1), 8 and 10(1)(a) of the Federal Constitution?

However, the Federal Court dismissed the application for non-compliance of the Courts of Judicature Act 1964 (Federal Court Criminal Application No. 06-04-04/2017(W)).

In Nik Adib Bin Nik Mat v Public Prosecutor (Rayuan Jenayah No 42S(A)-39-7/16), the accused was charged under s.233(1)(a) of the Communications and Multimedia Act 1998 for sending indecent and false photos of cabinet leaders titled “Pesta Bogel” on Facebook. He was also charged under s. 5(1)(a) of the Film Censorship Act 2002 for possession of 883 pieces of pornographic videos in his laptop. The Session Court sentenced him to the maximum sentence of 1 year imprisonment for the first offence and another 1 year imprisonment for the second offence.

On appeal, the High Court Judge stated that “cyber offences are serious offences especially the offence at hand, as those offensive materials could be easily disseminated to the public at large within seconds at a touch of a button” and agreed with the Sessions Court Judge that public interest is of paramount importance and should supersede the interest of the accused.

However, the learned High Court Judge was of the view that personal interest of the accused should not be disregarded at all and thus, allowed the appeal against the sentence. The learned High Court Judge took into account the grounds submitted by the accused and held that the misdirection of Session Court on imposing maximum sentence for the first offence warrants the appellate intervention and a special consideration ought to be given so that he can mend his ways and “turn over a new leaf”.

The High Court substituted the original sentence with 1 week imprisonment and a fine of RM3,000 in default 3 months imprisonment for the first charge and for the second charge, a fine of RM10,000 in default 1 ½ years imprisonment.

In Pendakwa Raya v Dato’ Dr Ahmad Ramzi Bin Ahmad Zubir (Rayuan Jenayah No. T-09-15-01/2014), the Respondent was charged with criminal defamation after he had sent text messages containing death threats to various individuals using another person’s (SP5) mobile phone number via an online platform registered in the name of a colleague of the Respondent (SP16). The said online platform allows users to broadcast SMS to numerous mobile numbers via the Internet. The Respondent had changed the sender’s mobile phone to SP5’s mobile number. The Respondent’s convicted by the Sessions Court but his conviction was overturned by the High Court.

On appeal, the Court of Appeal restored the conviction. In the grounds of judgment, the Court of Appeal discussed on the method used to determine whether the SMS was sent by the Respondent. The investigation had showed that the internet protocol address that was used to send the SMS was registered to the Respondent’s internet account. The MAC Address found was the same MAC Address of the Respondent’s router. According to the evidence provided by Cyber Security Malaysia, a MAC Address is a unique number provided by the Internet Service Provider and in order to connect to the Internet, it must be done through a router.

In Pendakwaraya v Charles Sugumar a/l M. Karunnanithi (Mahkamah Majistret Kota Bharu Kes Tangkap No: MKB (A) 83-43-02/2016), the accused was charged under s. s. 424 of the Penal Code for dishonestly concealing money of a scam victim in his bank account knowing that the said money does not belong to him. The victim had befriended a person by the name of Alfred Hammon from UK through Facebook. Alfred Hammon then made the victim transfer money to the accused’s bank account on the pretence that he needed the money to cash his cheque of US$3 million. Alfred Hammon promised that he will return the money together with interest. However, after transferring RM36,300 the victim realised that she was scammed.

The accused claimed that he is not part of the scam. The accused claimed that when he was working as a tour driver, he was requested by his customer to receive money on the customer’s behalf. The accused claimed that he did it to give his customer the best service so that he can attract more customers. He said that he was informed by the customer that the customer’s friend had to transfer money to him so that the customer can continue his tour in Malaysia. The accused said that he did not gain any remuneration or commission from that assistance.

The Magistrate acquitted the accused as the Magistrate found that, among others, the accused’s evidence is consistent and is a credible witness. The Magistrate agree that the accused was made a scapegoat by the customer who took advantage of his goodness and sincerity in giving the best service as a tour driver.

Computer Crimes Act

In Rose Hanida Binti Long lwn Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42K–(115–124)-09/2016), the appellant was charged under the Computer Crimes Act 1997 (unauthorised access to computer material with intent to facilitate the commission of an offence involving fraud or dishonesty or which causes injury) and s. 420 of the Penal Code (for cheating) for making false claims to his employer, a bank, by using his superior’s account and password to without his superior’s knowledge. She was initially sentenced by the Sessions Court with 4 years of imprisonment and fine of RM260,000 in default of 15 months jail. She appealed the sentence but withdrew it later. Notwithstanding that it had been withdrawn, the High Court Judge exercised his revisionary powers and enhanced the sentence to 6 years and fine of RM260,000 in default of 15 months jail due to the seriousness of the offence.

In Kangaie Agilan Jammany lwn PP [2017] 1 LNS 1640, the accused was charged under s. 5(1) of the Computer Crimes Act 1997 for making modification of the contents of Air Asia’s flight booking system without authorisation. The accused had allegedly used the function “move flight function” in those unauthorised transactions to change, among others, the flight details and customers’ emails for the purpose of notification. The said function is a critical function to allow authorised staff to make changes so that no charges are made to customers.

The accused was given an ID ‘6954’ and password to access Air Asia flight booking system but he had limited access to it. Thus, one of the witnesses, SP4, had given his ID and password to the accused after the accused had requested for it on the ground that the latter is unable to access to the system using his own ID. SP4 did not know that the accused had misused his account. The accused had then used the said account to help his family members and friends to get cheaper flight tickets, among others. Air Asia alleged that it had lost about RM229,100.42 due to the accused’s actions.

In the system log, it was found that the accused had changed the flight schedule and also that there were a few customer email notifications which involved the agent code 6954 which had made the flight changes. Further, there was an incident whereby SP4 was asked by the accused to provide his new password after it had been changed.

The Sessions Court found the accused guilty and had applied the statutory presumption under s. 114A of the Evidence Act 1950 after the accused could not rebut the evidence that the agent code 6954 belongs and used by him.

Under 114A of the Evidence Act 1950, 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. In 2014, this new law sparked a massive online protest dubbed the Malaysia Internet Blackout Day or also the Stop114A.

On appeal, the High Court concurred with the Sessions Court Judge. The High Court Judge also held that s. 114A of the Evidence Act 1950 applies retrospectively notwithstanding that the offence was committed prior to the enforcement of s. 114A as the presumption did not alter the original subject matter and even includes the same subject matter that did not prejudice the accused before and after. In other words, without using such presumption, the Prosecution would still have to prove that the Accused was the person who used his ID and password to access the employer’s system had committed an offence to change the flight schedule without authorisation. On the contrary also by applying the presumption of the law, the Prosecution will still have to prove that the accused alone has a specific ID and password to access the system.

Closing

2018 will mark another interesting year for cyber related cases. In late 2017 and early 2018, the following cases have been filed:-

– A Uber driver sued Uber Malaysia Sdn Bhd for non payment of his fees. The interesting question in this case would be whether Uber Malaysia Sdn Bhd is liable to pay such fees or one of Uber’s foreign entities.
– In the Intellectual Property Court of Kuala Lumpur, a brand owner had filed a law suit for trade mark infringement against a web hosting company for hosting a website that sold counterfeit products. The interesting question in this case is whether a webhoster is liable for what their subscribers do.
– In the same Court, a brand owner had also filed a law suit for trade mark infringement against online marketplace operator for using the brand owner’s registered trade mark and allowing their users to sell unauthorised products. The interesting question in this case is whether an online marketplace operator is liable for what their users do on their platform and in particular case, for selling unauthorised products.
– The same Court also granted an application to serve a Writ and Statement of Claim via email and WhatsApp messenger after it could not locate the Defendant at her last known address. Traditionally, when a Defendant cannot be located, Plaintiff would normally ask the Court to allow a notice relating to the lawsuit to be published in the newspaper, among others. We will see more and more substituted service applications to be served electronically.
PKR communications director Fahmi Fadzil filed a civil suit against the Malaysian Communications and Multimedia Commission and Nuemera (M) Sdn Bhd for allegedly failed to protect his personal data which resulted in the leakages of his personal data together with personal information of 46.2 million mobile subscribers. This was one of Malaysians’ biggest data leak.

Finally, the recent introduction this month of the Anti-Fake News Bill 2018 is too important for me to leave till next year to comment!

The word “fake news” is defined as any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.

The law applies to fake news concerning Malaysia or the person affected by the commission of the offence is a Malaysian citizen. Any person who, by any means, knowingly creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news commits an offence and shall, on conviction, be liable to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding 10 years or to both.

The Court may also order the accused to make an apology. Interestingly, the new law allows civil action to be initiated by a person affected by the fake news publication for an order for the removal of such publication. I will write further on this new law on a separate article. [Postscript: The Anti Fake News Act 2018 is now in force effective from 11 April 2018]


First published on Digital News Asia on 30 March 2018

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