Kho Whai Phiaw v Chong Chieng Jen

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.

GE13 Candidates and 114A

Published on LoyarBurok on 16 April 2013.



I am no expert in election laws but GE13 Candidates should take note of this. If you are running a blog, I suggest you moderate or close the comments section until and after the 13th General Election.

The reason why I say so is because s.114A(1) of the Evidence Act 1950 and the Election Offences Act 1954. S. 114A(1) provide the following:

“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 unless you prove otherwise.

Also, if you have in any manner facilitated to publish or re-publish the publication, you are presumed to have published the content of the publication.

This means that website owners are deemed to be publishers of contents of a publication although the author of the publication is someone else.

Further, it is not possible for website owner to prove that he is not a publisher due to the wording of the section i.e. the words “in any manner facilitates to publish or re-publish the publication”. By providing a virtual platform, the website owners facilitate to publish or re-publish a publication.

In this regard, you will potentially commit an election offence if someone posts a comment which falls within the scope of corrupt practice. If found guilty of an election offence, the election of a candidate will be declared void (s. 32 of the Election Offences Act 1954).

What I have mentioned is not without basis. A similar scenario had happened after the 12th General Elections. In Kho Whai Phiaw v Chong Chieng Jen (Election Petition No.: 26-01-2008-I), an elector in the Bandar Kuching constituency presented an election petition to have Mr. Chong Chieng Jen’s (representative of the Democratic Action Party (DAP)) election declared void.

The elector sought to have Mr Chong’s election avoided on the ground that the latter had engaged in the corrupt practice of (i) undue influence and (ii) bribery, to procure his victory in the election. The elector alleged, among others, that a letter from one Mr Smith published on the comment section of Mr Chong’s blog site is said to contain certain threatening statement. The elector alleged that Mr Chong had exercised undue influence over the non-Muslim voters in the Bandar Kuching constituency through Mr Smith’s letter appearing on his blog site.

Fortunately for Mr Chong, the High Court held that Mr Smith’s letter was posted by one commentor by the name “Responsible Christian Voter” (‘RCV’). Mr. Smith was the author of the letter and it was RCV who published that letter through Mr Chong’s blog site. The Court held that Mr Chong is therefore not the publisher of the letter. The case is later upheld by the Federal Court. (see Kho Whai Phiaw v Chong Chieng Jen [2009] 3 CLJ 201)

But Mr Chong’s case is pre-114A case. If s. 114A applies, Mr Chong is considered as the publisher of the letter as his blogsite had facilitated the publication of the letter. Mr Chong could potentially commit an election offence if 114A applies. That is the effect of 114A. It creates liability on a virtual platform provider.

This, of course, is not tested in our Courts yet. One may argue that it is the blogsite provider (e.g. Google who owns Blogger.com) but this is only provided that such blog is hosted by such blogsite provider.

Nevertheless, as an abundance of caution, GE13 candidates should close their blog comments section to avoid such actions. Interestingly, Mr Chong’s blogsite has closed its comments section.

A Facebook Page is also another concern. It may be arguable to say postings made by users on a Facebook page is not published by the Facebook page administrator as it appears on a separate page. (Illustrated below).

However, Facebook comments appearing together with the postings by the Facebook administrator (illustrated below) is different. It is arguable that such comments are published by the Facebook page owner.

With this risk of having an election declared void, I hope that the new Parliament will relook into 114A when it convenes in the future.

It’s time to #stop114A.

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