Constitutionality – Notice of Motion determined in criminal proceedings –Res judicata – Application for declaration in civil court – Whether abuse of court process –
Sedition Act 1948, sections 3 and 4 – Federal Constitution, article 10

Kerajaan Malaysia v Mat Shuhaimi bin Shafiei
[2018] 1 AMR 837, Federal Court
Facts The respondent was charged with an offence of publishing a seditious publication under section 4(1)(c) of the Sedition Act 1948 (“the Act”) at the Sessions Court. Before the commencement of the trial, the respondent filed a Notice of Motion (“the Motion”) to strike out the charge. At the High Court, the Motion was dismissed and it was held that section 4(1)(c) of the Act was not ultra vires the Federal Constitution (“FC”). The subsequent appeal was unsuccessful and the respondent was directed to appear for trial in the Sessions Court. Subsequently, the respondent, by way of an Originating Summons (“the Application”) at the High Court, applied for a declaration that section 3[1] of the Act read with section 4[2] thereof violates article 10[3](1)(a) of the FC and is accordingly null and void. The High Court dismissed the Application and held that it was an abuse of the court process. Upon appeal, the Court of Appeal decided that section 3(3) of the Act is invalid and of no effect in law, as it contravenes article 10 of the FC. Aggrieved, the appellant appealed.
Issue The main issue was whether the Application amounts to an abuse of court process on the ground of res judicata in view of the previous criminal proceedings.
Held In allowing the appeal, the Federal Court held that the constitutionality of section 3(3) of the Act, which deemed intention to be irrelevant once seditious tendency is proved, could have been raised in the Motion. Thus, the Application is an abuse of court process.

[1] Seditious tendency.
[2] Offences
[3] Freedom of speech, assembly and association.