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 a/l 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
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